In The Matter (Feb 8, 2011)

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EN BANC
[A.M. No. 10-7-17-SC. February 8, 2011.]
IN THE MATTER OF THE CHARGES OF PLAGIARISM, ETC., AGAINST ASSOCIATE JUSTICE MARIANO C.
DEL CASTILLO
RESOLUTION
PER CURIAM : p
Petitioners Isabelita C. Vinuya, et al., all members of the Malaya Lolas Organization, seek reconsideration of the decision of the Court dated
October 12, 2010 that dismissed their charges of plagiarism, twisting of cited materials, and gross neglect against Justice Mariano Del Castillo in
connection with the decision he wrote for the Court in G.R. No. 162230, entitled Vinuya v. Romulo. 1
Mainly, petitioners claim that the Court has by its decision legalized or approved of the commission of plagiarism in the Philippines. This claim
is absurd. The Court, like everyone else, condemns plagiarism as the world in general understands and uses the term.
Plagiarism, a term not defined by statute, has a popular or common definition. To plagiarize, says Webster, is "to steal and pass off as one's own"
the ideas or words of another. Stealing implies malicious taking. Black's Law Dictionary, the world's leading English law dictionary quoted by
the Court in its decision, defines plagiarism as the "deliberate and knowing presentation of another person's original ideas or creative expressions
as one's own." 2 The presentation of another person's ideas as one's own must be deliberate or premeditated a taking with ill intent.
There is no commonly-used dictionary in the world that embraces in the meaning of plagiarism errors in attribution by mere accident or in good
faith.
Certain educational institutions of course assume different norms in its application. For instance, the Loyola Schools Code of Academic Integrity
ordains that "plagiarism is identified not through intent but through the act itself. The objective act of falsely attributing to one's self what is not
one's work, whether intentional or out of neglect, is sufficient to conclude that plagiarism has occurred. Students who plead ignorance or appeal
to lack of malice are not excused." 3
But the Court's decision in the present case does not set aside such norm. The decision makes this clear, thus:
To paraphrase Bast and Samuels, while the academic publishing model is based on the originality of the writer's thesis, the
judicial system is based on the doctrine of stare decisis, which encourages courts to cite historical legal data, precedents, and
related studies in their decisions. The judge is not expected to produce original scholarship in every respect. The strength of a
decision lies in the soundness and general acceptance of the precedents and long held legal opinions it draws from. 4 SacTCA
Original scholarship is highly valued in the academe and rightly so. A college thesis, for instance, should contain dissertations embodying results
of original research, substantiating a specific view. 5 This must be so since the writing is intended to earn for the student an academic degree,
honor, or distinction. He earns no credit nor deserves it who takes the research of others, copies their dissertations, and proclaims these as his
own. There should be no question that a cheat deserves neither reward nor sympathy.
But the policy adopted by schools of disregarding the element of malicious intent found in dictionaries is evidently more in the nature of
establishing what evidence is sufficient to prove the commission of such dishonest conduct than in rewriting the meaning of plagiarism. Since it
would be easy enough for a student to plead ignorance or lack of malice even as he has copied the work of others, certain schools have adopted
the policy of treating the mere presence of such copied work in his paper sufficient objective evidence of plagiarism. Surely, however, if on its
face the student's work shows as a whole that he has but committed an obvious mistake or a clerical error in one of hundreds of citations in his
thesis, the school will not be so unreasonable as to cancel his diploma.
In contrast, decisions of courts are not written to earn merit, accolade, or prize as an original piece of work or art. Deciding disputes is a service
rendered by the government for the public good. Judges issue decisions to resolve everyday conflicts involving people of flesh and blood who
ache for speedy justice or juridical beings which have rights and obligations in law that need to be protected. The interest of society in written
decisions is not that they are originally crafted but that they are fair and correct in the context of the particular disputes involved. Justice, not
originality, form, and style, is the object of every decision of a court of law.
There is a basic reason for individual judges of whatever level of courts, including the Supreme Court, not to use original or unique language
when reinstating the laws involved in the cases they decide. Their duty is to apply the laws as these are written. But laws include, under the
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doctrine of stare decisis, judicial interpretations of such laws as are applied to specific situations. Under this doctrine, Courts are "to stand by
precedent and not to disturb settled point." Once the Court has "laid down a principle of law as applicable to a certain state of facts, it will adhere
to that principle, and apply it to all future cases, where facts are substantially the same; regardless of whether the parties or property are the
same." 6
And because judicial precedents are not always clearly delineated, they are quite often entangled in apparent inconsistencies or even in
contradictions, prompting experts in the law to build up regarding such matters a large body of commentaries or annotations that, in themselves,
often become part of legal writings upon which lawyers and judges draw materials for their theories or solutions in particular cases. And, because
of the need to be precise and correct, judges and practitioners alike, by practice and tradition, usually lift passages from such precedents and
writings, at times omitting, without malicious intent, attributions to the originators.
Is this dishonest? No. Duncan Webb, writing for the International Bar Association puts it succinctly. When practicing lawyers (which include
judges) write about the law, they effectively place their ideas, their language, and their work in the public domain, to be affirmed, adopted,
criticized, or rejected. Being in the public domain, other lawyers can thus freely use these without fear of committing some wrong or incurring
some liability. Thus:
The tendency to copy in law is readily explicable. In law accuracy of words is everything. Legal disputes often centre round the
way in which obligations have been expressed in legal documents and how the facts of the real world fit the meaning of the words
in which the obligation is contained. This, in conjunction with the risk-aversion of lawyers means that refuge will often be sought
in articulations that have been tried and tested. In a sense therefore the community of lawyers have together contributed to this
body of knowledge, language, and expression which is common property and may be utilized, developed and bettered by anyone.
7
The implicit right of judges to use legal materials regarded as belonging to the public domain is not unique to the Philippines. As Joyce C.
George, whom Justice Maria Lourdes Sereno cites in her dissenting opinion, observed in her Judicial Opinion Writing Handbook: TaEIAS
A judge writing to resolve a dispute, whether trial or appellate, is exempted from a charge of plagiarism even if ideas, words or
phrases from a law review article, novel thoughts published in a legal periodical or language from a party's brief are used without
giving attribution. Thus judges are free to use whatever sources they deem appropriate to resolve the matter before them, without
fear of reprisal. This exemption applies to judicial writings intended to decide cases for two reasons: the judge is not writing a
literary work and, more importantly, the purpose of the writing is to resolve a dispute. As a result, judges adjudicating cases are
not subject to a claim of legal plagiarism. 8
If the Court were to inquire into the issue of plagiarism respecting its past decisions from the time of Chief Justice Cayetano S. Arellano to the
present, it is likely to discover that it has not on occasion acknowledged the originators of passages and views found in its decisions. These
omissions are true for many of the decisions that have been penned and are being penned daily by magistrates from the Court of Appeals, the
Sandiganbayan, the Court of Tax Appeals, the Regional Trial Courts nationwide and with them, the municipal trial courts and other first level
courts. Never in the judiciary's more than 100 years of history has the lack of attribution been regarded and demeaned as plagiarism.
This is not to say that the magistrates of our courts are mere copycats. They are not. Their decisions analyze the often conflicting facts of each
case and sort out the relevant from the irrelevant. They identify and formulate the issue or issues that need to be resolved and evaluate each of the
laws, rulings, principles, or authorities that the parties to the case invoke. The decisions then draw their apt conclusions regarding whether or not
such laws, rulings, principles, or authorities apply to the particular cases before the Court. These efforts, reduced in writing, are the product of the
judges' creativity. It is here actually the substance of their decisions that their genius, originality, and honest labor can be found, of which
they should be proud.
In Vinuya, Justice Del Castillo examined and summarized the facts as seen by the opposing sides in a way that no one has ever done. He
identified and formulated the core of the issues that the parties raised. And when he had done this, he discussed the state of the law relevant to
their resolution. It was here that he drew materials from various sources, including the three foreign authors cited in the charges against him. He
compared the divergent views these present as they developed in history. He then explained why the Court must reject some views in light of the
peculiar facts of the case and applied those that suit such facts. Finally, he drew from his discussions of the facts and the law the right solution to
the dispute in the case. On the whole, his work was original. He had but done an honest work.
The Court will not, therefore, consistent with established practice in the Philippines and elsewhere, dare permit the filing of actions to annul the
decisions promulgated by its judges or expose them to charges of plagiarism for honest work done.
This rule should apply to practicing lawyers as well. Counsels for the petitioners, like all lawyers handling cases before courts and administrative
tribunals, cannot object to this. Although as a rule they receive compensation for every pleading or paper they file in court or for every opinion
they render to clients, lawyers also need to strive for technical accuracy in their writings. They should not be exposed to charges of plagiarism in
what they write so long as they do not depart, as officers of the court, from the objective of assisting the Court in the administration of justice.
As Duncan Webb said:
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In presenting legal argument most lawyers will have recourse to either previous decisions of the courts, frequently lifting whole
sections of a judge's words to lend weight to a particular point either with or without attribution. The words of scholars are also
sometimes given weight, depending on reputation. Some encyclopaedic works are given particular authority. In England this
place is given to Halsbury's Laws of England which is widely considered authoritative. A lawyer can do little better than to frame
an argument or claim to fit with the articulation of the law in Halsbury's. While in many cases the very purpose of the citation is
to claim the authority of the author, this is not always the case. Frequently commentary or dicta of lesser standing will be adopted
by legal authors, largely without attribution.
xxx xxx xxx
The converse point is that originality in the law is viewed with skepticism. It is only the arrogant fool or the truly gifted who will
depart entirely from the established template and reformulate an existing idea in the belief that in doing so they will improve it.
While over time incremental changes occur, the wholesale abandonment of established expression is generally considered
foolhardy. 9 IADCES
The Court probably should not have entertained at all the charges of plagiarism against Justice Del Castillo, coming from the losing party. But it
is a case of first impression and petitioners, joined by some faculty members of the University of the Philippines school of law, have unfairly
maligned him with the charges of plagiarism, twisting of cited materials, and gross neglect for failing to attribute lifted passages from three
foreign authors. These charges as already stated are false, applying the meaning of plagiarism as the world in general knows it.
True, Justice Del Castillo failed to attribute to the foreign authors materials that he lifted from their works and used in writing the decision for the
Court in the Vinuya case. But, as the Court said, the evidence as found by its Ethics Committee shows that the attribution to these authors
appeared in the beginning drafts of the decision. Unfortunately, as testified to by a highly qualified and experienced court-employed researcher,
she accidentally deleted the same at the time she was cleaning up the final draft. The Court believed her since, among other reasons, she had no
motive for omitting the attribution. The foreign authors concerned, like the dozens of other sources she cited in her research, had high reputations
in international law.
Notably, those foreign authors expressly attributed the controversial passages found in their works to earlier writings by others. The authors
concerned were not themselves the originators. As it happened, although the ponencia of Justice Del Castillo accidentally deleted the attribution
to them, there remained in the final draft of the decision attributions of the same passages to the earlier writings from which those authors
borrowed their ideas in the first place. In short, with the remaining attributions after the erroneous clean-up, the passages as it finally appeared in
the Vinuya decision still showed on their face that the lifted ideas did not belong to Justice Del Castillo but to others. He did not pass them off as
his own.
With our ruling, the Court need not dwell long on petitioners' allegations that Justice Del Castillo had also committed plagiarism in writing for
the Court his decision in another case, Ang Ladlad v. Commission on Elections. 10 Petitioners are nit-picking. Upon close examination and as
Justice Del Castillo amply demonstrated in his comment to the motion for reconsideration, he in fact made attributions to passages in such
decision that he borrowed from his sources although they at times suffered in formatting lapses.
Considering its above ruling, the Court sees no point in further passing upon the motion of the Integrated Bar of the Philippines for leave to file
and admit motion for reconsideration-in-intervention dated January 5, 2011 and Dr. Peter Payoyo's claim of other instances of alleged plagiarism
in the Vinuya decision.
ACCORDINGLY, the Court DENIES petitioners' motion for reconsideration for lack of merit.
SO ORDERED.
Corona, C.J., Velasco, Jr., Nachura and Villarama, Jr., JJ., concur.
Carpio, J., see dissenting opinion.
Carpio Morales, J., please see separate dissenting opinion.
Leonardo-de Castro and Perez, JJ., concur and also join the separate opinions of Justice Brion and Justice Abad.
Brion, J., see separate concurring opinion.
Peralta, Bersamin and Mendoza, JJ., join the opinion of Justice A. Brion.
Del Castillo, J., took no part.
Abad, J., with a separate concurring opinion.
Sereno, J., please see dissenting opinion.
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Separate Opinions
CARPIO, J., dissenting:
I dissent on two grounds. First, this Court has no jurisdiction to decide in an administrative case whether a sitting Justice of this Court has
committed misconduct in office as this power belongs exclusively to Congress. Second, in writing judicial decisions a judge must comply with
the Law on Copyright 1 as the judge has no power to exempt himself from the mandatory requirements of the law. ICDSca
I.Disciplining Authority of Impeachable Officers
Under the Constitution, the sole disciplining authority of all impeachable officers, including Justices of this Court, is Congress. Section 3 (1),
Article XI of the Constitution provides that, "The House of Representatives shall have the exclusive power to initiate all cases of impeachment."
Likewise, Section 3 (6) of the same Article provides that, "The Senate shall have the sole power to try and decide cases of impeachment." These
provisions constitute Congress as the exclusive authority to discipline all impeachable officers for any impeachable offense, including
"betrayal of public trust," a "catchall phrase" 2 to cover any misconduct involving breach of public trust by an impeachable officer.
While impeachment is often described as a political process, it also functions as the equivalent of administrative disciplinary proceedings against
impeachable officers. Impeachable officers are not subject to administrative disciplinary proceedings either by the Executive or Judicial branch,
in the same manner that non-impeachable officers are subject. Thus, impeachment by Congress takes the place of administrative disciplinary
proceedings against impeachable officers as there is no other authority that can administratively discipline impeachable officers. 3 Removal
from office and disqualification to hold public office, 4 which is the penalty for an impeachable offense, 5 is also the most severe penalty that can
be imposed in administrative disciplinary proceedings.
Impeachment is not a criminal proceeding because conviction in an impeachment complaint is not a bar to criminal prosecution for the same act.
6 An impeachable offense, like betrayal of public trust, may not even constitute a criminal act. Like in an administrative proceeding, proof
beyond reasonable doubt is not required for conviction in impeachment. If an impeachable officer is charged of a crime, as distinguished from an
administrative charge, the proper court has jurisdiction to try such impeachable officer because the proceeding is criminal, not administrative.
However, neither the conviction nor acquittal of such impeachable officer in the criminal case constitutes a bar to his subsequent impeachment by
Congress. There is no double jeopardy because impeachment is not a criminal proceeding. 7
Only Congress, as the exclusive disciplining authority of all impeachable officers, can decide in a non-criminal, non-civil proceeding 8 whether
a sitting Justice of this Court has committed plagiarism. Plagiarism is a betrayal of public trust because, as the majority puts it, to plagiarize is
"'to steal and pass off as one's own' the ideas of another." 9 However, in writing judicial decisions a judge is liable for plagiarism only if the
copying violates the moral rights of the author under the Law on Copyright.
This Court may conduct an investigation of an administrative complaint against a sitting Justice to determine if there is basis in recommending to
the House of Representatives the initiation of an impeachment complaint against the sitting Justice. This Court may also conduct an investigation
of an administrative complaint against a sitting Justice to determine if the complaint constitutes contempt of this Court. However, this Court has
no power to decide on the guilt or innocence of a sitting Justice in the administrative complaint because such act is a usurpation of the
exclusive disciplinary power of Congress over impeachable officers under the Constitution. Any decision by this Court in an administrative
case clearing a sitting Justice of an impeachable offense is void for want of jurisdiction and for violation of an express provision of the
Constitution.
Such a decision will put this Court on a collision course with Congress if subsequently an impeachment complaint for plagiarism is filed with
Congress against the sitting Justice. Incidentally, an impeachment complaint has already been filed in the House of Representatives involving the
same complaint subject of this administrative case. If the House of Representatives decides to take cognizance of the complaint and initiates an
impeachment based on the same administrative complaint that this Court had already dismissed as baseless, then this Court would have created a
constitutional crisis that could only weaken the public's faith in the primacy of the Constitution.
The Supreme Court cannot assume jurisdiction over an administrative complaint against a sitting Justice of this Court by invoking Section 6,
Article VIII of the Constitution. This provision states that the "Supreme Court shall have administrative supervision over all courts and the
personnel thereof." This provision refers to the administrative supervision that the Department of Justice used to exercise over the courts and
their personnel, as shown by the following exchange during the deliberations of the Constitutional Commission: IcHSCT
MR. GUINGONA: . . . .
The second question has reference to Section 9, about the administrative supervision over all courts to be retained in the Supreme Court. I
was wondering if the Committee had taken into consideration the proposed resolution for the transfer of the administrative
supervision from the Supreme Court to the Ministry of Justice. But as far as I know, none of the proponents had been invited to
explain or defend the proposed resolution.
Also, I wonder if the Committee also took into consideration the fact that the UP Law Constitution Project in its Volume I, entitled:
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Annotated Provision had, in fact, made this an alternative proposal, the transfer of administrative supervision from the Supreme
Court to the Ministry of Justice.
Thank you.
MR. CONCEPCION:
May I refer the question to Commissioner Regalado?
THE PRESIDING OFFICER (Mr. Sarmiento):
Commissioner Regalado is recognized.
MR. REGALADO:
Thank you, Mr. Presiding Officer.
We did invite Minister Neptali Gonzales, who was the proponent for the transfer of supervision of the lower courts to the Ministry of
Justice. I even personally called up and sent a letter or a short note inviting him, but the good Minister unfortunately was
enmeshed in a lot of official commitments. We wanted to hear him because the Solicitor General of his office, Sedfrey Ordoez,
appeared before us, and asked for the maintenance of the present arrangement wherein the supervision over lower courts is with
the Supreme Court. But aside from that, although there were no resource persons, we did further studies on the feasibility of
transferring the supervision over the lower courts to the Ministry of Justice. All those things were taken into consideration motu
proprio. 10
For sure, the disciplinary authority of the Supreme Court over judges is expressly governed by another provision, that is, Section 11, Article
VIII of the Constitution. Section 11 provides:
Section 11.. . . The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote
of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon. (Emphasis supplied)
Clearly, the disciplinary authority of the Supreme Court over judges is found in Section 11 of Article VIII. However, this disciplinary
authority is expressly limited to lower court judges, and does not include Supreme Court Justices, precisely because the Constitution
expressly vests exclusively on Congress the power to discipline Supreme Court Justices. By excluding Supreme Court Justices, Section 11
withholds from the Supreme Court en banc the power to discipline its own members.
The Judicial Conduct and Disability Act of 1980 of the United States, which gives judicial councils composed of federal judges the power to
discipline federal judges short of removal from office, does not apply to Justices of the United States Supreme Court who are subject to
discipline only by the United States Congress. Moreover, a similar law cannot be enacted in the Philippines because all lower court judges are
subject to discipline by the Supreme Court en banc under Section 11, Article VIII of the Constitution. Thus, reference to the Judicial Conduct
and Disability Act of 1980 is inappropriate in this jurisdiction.
I submit that this Court recall the Resolution of 12 October 2010 subject of the present motion for reconsideration for lack of jurisdiction to
decide the administrative complaint against Justice Mariano C. Del Castillo. IDETCA
II.The Judge Must Follow the Law on Copyright

a.Copying from Works of the Government
In writing judicial decisions, a judge should make the proper attribution in copying passages from any judicial decision, statute, regulation, or
other Works of the Government. The Manual of Judicial Writing adopted 11 by this Court provides how such attribution should be made.
However, the failure to make such attribution does not violate the Law on Copyright. 12 The law expressly provides that Works of the
Government are not subject to copyright. 13 This means that there is neither a legal right by anyone to demand attribution, nor any legal
obligation from anyone to make an attribution, when Works of the Government are copied. The failure to make the proper attribution of a Work
of the Government is not actionable but is merely a case of sloppy writing. Clearly, there is no legal obligation, by a judge or by any person, to
make an attribution when copying Works of the Government.
However, misquoting or twisting, with or without attribution, any judicial decision, statute, regulation or other Works of the Government in
judicial writing, if done to mislead the parties or the public, is actionable. Under Canon 3 of the Code of Judicial Conduct, a judge "should
perform official duties honestly." 14 Rule 3.01 15 and Rule 3.02 16 of the Code provide that a judge must be faithful to the law, maintain
professional competence, and strive diligently to ascertain the facts and the applicable law.
The foregoing applies to any non-copyrightable work, and any work in the public domain, whether local or foreign.
b.Copying from Pleadings of Parties
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In writing judicial decisions, the judge may copy passages from the pleadings of the parties with proper attribution to the author of the pleading.
However, the failure to make the proper attribution is not actionable.
Pleadings are submitted to the court precisely so that the pleas, or the arguments written on the pleadings, are accepted by the judge. There is an
implied offer by the pleader that the judge may make any use of the pleadings in resolving the case. If the judge accepts the pleader's
arguments, he may copy such arguments to expedite the resolution of the case. In writing his decision, the judge does not claim as his own the
arguments he adopts from the pleadings of the parties. Besides, the legal arguments in the pleadings are in most cases merely reiterations of
judicial precedents, which are Works of the Government.
However, misquoting or twisting, with or without attribution, any passage from the pleadings of the parties, if done to mislead the parties or the
public, is actionable. Under Canon 3 of the Code of Judicial Conduct, a judge "should perform official duties honestly." Rule 3.01 and Rule 3.02
of the Code provide that a judge must be faithful to the law, maintain professional competence, and strive diligently to ascertain the facts and the
applicable law.
c.Copying from Textbooks, Journals and other Non-Government Works
In writing judicial decisions, the judge may copy passages from textbooks, journals and other non-government works with proper attribution.
However, whether the failure to make the proper attribution is actionable or not depends on the nature of the passages copied.
If the work copied without proper attribution is copyrighted, the failure to make such attribution violates Section 193 of the Intellectual Property
Code, which provides: aEHASI
Section 193.Scope of Moral Rights. The author of a work shall, independently of the economic rights in Section 177 or the grant of an
assignment or license with respect to such right, have the right:
193.1.To require that the authorship of the works be attributed to him, in particular, the right that his name, as far as practicable, be
indicated in a prominent way on the copies, and in connection with the public use of his work;
xxx xxx xxx
193.3.To object to any distortion, mutilation or other modification of, or other derogatory action in relation to his work which would
be prejudicial to his honor or reputation;
xxx xxx xxx. (Emphasis supplied)
Section 184 (k) of the Intellectual Property Code expressly allows, as a limitation on the copyright or economic rights of the author, "any use
made of a work for the purpose of any judicial proceedings . . . ." 17 Section 184 (k) clearly authorizes a judge to copy copyrighted works for
"any use" in judicial proceedings, which means the judge, in writing his decision, can copy passages beyond the quantitative limitations of "fair-
use" under Section 184 (b). This is the significance of Section 184 (k), allowing the judge to copy lengthy passages of copyrighted work even
beyond what is required by fair-use. Section 184 (k) is silent on the obligation of the judge to make the proper attribution, unlike Section 184 (b)
on fair-use by the public which expressly requires a proper attribution.
However, Section 193 nevertheless requires anyone, including a judge writing a judicial decision, to make the proper attribution to show respect
for the moral rights of the author. Thus, while the author has no right to demand economic compensation from the judge or the government for
the unlimited and public use of his work in a judicial decision, the law requires that "the authorship of the works be attributed to him . . . in
connection with the public use of his work." In short, the judge is legally obligated to make the proper attribution because Section 193 protects
the moral rights of the author.
The moral rights under Section 193 of the Intellectual Property Code arise only if the work of an author is copyrighted. If the work is not
copyrighted, then there are no moral rights to the work. If the passages in a textbook, journal article, or other non-work of the government are
merely quotations from Works of the Government, like sentences or paragraphs taken from judicial decisions, then such passages if copied by a
judge do not require attribution because such passages, by themselves, are Works of the Government. The same is true for works in the public
domain.
However, the arrangement or presentation of passages copied from Works of the Government may be subject to copyright, 18 and a judge
copying such arrangement or presentation, together with the passages, may have to make the proper attribution. If the passages are those of the
author himself, and not copied from Works of the Government or from works in the public domain, then clearly there is a legal obligation on the
part of the judge to make the proper attribution. Failure by the judge to make such attribution violates not only Section 193 of the Intellectual
Property Code, but also Canon 3 of the Code of Judicial Conduct.
The moral rights of an author are independent of the author's economic rights to his work in the sense that even if the author assigns his work, the
moral rights to the work remain with him, being inalienable. 19 Any violation of an author's moral rights entitles him to the same remedies as a
violation of the economic rights to the work, 20 whether such economic rights are still with him or have been assigned to another party. Thus,
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while called "moral rights," these rights are legally enforceable. TIESCA
Two essential elements of an author's moral rights are the right to attribution and the right to integrity. The right to attribution or paternity 21 is
the right of the author to be recognized as the originator or father of his work, a right expressly recognized in Section 193.1 of the Intellectual
Property Code. The right to integrity is the right of the author to prevent any distortion or misrepresentation of his work, a right expressly
recognized in Section 193.3 of the Code. The Legislature incorporated the moral rights of an author in the Intellectual Property Code in
compliance with the treaty obligations of the Philippines under the Berne Convention, which requires treaty states to enact legislation protecting
the moral rights of authors. 22
The rationale behind moral rights is explained in a local intellectual property textbook, citing American jurisprudence:
The term moral rights has its origins in the civil law and is a translation of the French le droit moral, which is meant to capture those
rights of a spiritual, non-economic and personal nature. The rights spring from a belief that an artist in the process of creation injects his
spirit into the work and that the artist's personality, as well as the integrity of the work, should therefore be protected and preserved.
Because they are personal to the artist, moral rights exist independently of an artist's copyright in his or her work. While the rubric of
moral rights encompasses many varieties of rights, two are protected in nearly every jurisdiction recognizing their existence:
attribution and integrity. The right of attribution generally consists of the right of an artist to be recognized by name as the
author of his work or to publish anonymously or pseudonymously, the right to prevent the author's work from being attributed to
someone else, and to prevent the use of the author's name on works created by others, including distorted editions of the author's
original work. The right of integrity allows the author to prevent any deforming or mutilating changes to his work, even after title
of the work has been transferred. In some jurisdictions, the integrity right also protects artwork from destruction. Whether or not a
work of art is protected from destruction represents a fundamentally different perception of the purpose of moral rights. If integrity is
meant to stress the public interest in preserving a nation's culture, destruction is prohibited; if the right is meant to emphasize the author's
personality, destruction is seen as less harmful than the continued display of deformed or mutilated work that misrepresents the artist and
destruction may proceed. 23 (Emphasis supplied)
When a judge respects the right to attribution and integrity of an author, then the judge observes intellectual honesty in writing his decisions.
Writing decisions is the most important official duty of a judge, more so of appellate court judges. Conversely, if a judge fails to respect an
author's right to attribution and integrity, then the judge fails to observe intellectual honesty in the performance of his official duties, a violation
of Canon 3 of the Code of Judicial Conduct.
The duty of a judge to respect the moral rights of an author is certainly not burdensome on the performance of his official duties. All the
reference materials that a judge needs in writing judicial decisions are either Works of the Government or works in the public domain. A judge
must base his decision on the facts and the law, 24 and the facts and the law are all in the public domain. There is no need for a judge to
refer to copyrighted works. When a judge ventures to refer to copyrighted works by copying passages from such works, he immediately knows
he is treading on protected works, and should readily respect the rights of the authors of those works. The judge, whose most important function
is to write judicial decisions, must be the first to respect the rights of writers whose lives and passions are dedicated to writing for the education
of humankind.
Besides, Section 184 (k) of the Intellectual Property Code already generously allows the judge unlimited copying of copyrighted works in writing
his judicial decisions. The Code, however, does not exempt the judge from recognizing the moral rights of the author. The basic rule of human
relations, as embodied in Article 19 of the Civil Code, requires that the judge should give to the author of the copyrighted work what is due him.
Thus, Article 19 states: "Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone
his due, and observe honesty and good faith."
d.Difference from the Academe
Academic writing, such as writing dissertations or articles in academic journals, is governed by standards different from judicial decision writing.
The failure to make the proper attribution for passages copied from Works of the Government is not actionable against a judge when writing a
judicial decision. However, the same failure by a student or a faculty member may be deemed plagiarism in the academe, meriting a severe
administrative penalty. Nevertheless, the Judiciary and the academe should have the same rule when it comes to copyrighted works. In every
case, there is a legal duty to make the proper attribution when copying passages from copyrighted works because the law expressly
requires such attribution without exception. EcAISC
The academe requires that passages copied from Works of the Government, works in the public domain, and non-copyrighted works should be
properly attributed in the same way as copyrighted works. The rationale is to separate the original work of the writer from the works of other
authors in order to determine the original contribution of the writer to the development of a particular art or science. This rationale does not apply
to the Judiciary, where adherence to jurisprudential precedence is the rule. However, if a judge writes an article for a law journal, he is bound by
the same rules governing academic writing. 25
ACCORDINGLY, I vote to RECALL the Resolution of 12 October 2010 subject of the present motion for reconsideration as this Court's
jurisdiction extends only to a determination whether the administrative complaint against Justice Mariano C. Del Castillo constitutes contempt of
this Court.
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CARPIO MORALES, J., dissenting:
I join Justice Antonio T. Carpio's thesis in his Dissenting Opinion on the commission of plagiarism or violation of intellectual property rights in
the Vinuya decision. I join him too on his other thesis that this Court has no jurisdiction to decide an administrative case where a sitting Justice of
this Court has committed misconduct in office, with qualification.
I submit that the Court may wield its administrative power against its incumbent members on grounds other than culpable violation of the
Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust, AND provided the offense or misbehavior does
not carry with it a penalty, the service of which would amount to removal from office either on a permanent or temporary basis such as
suspension.
The President, the Vice President, the members of the Supreme Court, the Members of the Constitutional Commissions, and the
Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery,
graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as
provided by law, but not by impeachment. 1 (underscoring supplied)
In 1988, the Court dismissed the complaint for disbarment against Justice Marcelo Fernan for lack of merit. Aside from finding the accusations
totally baseless, the Court, by per curiam Resolution, 2 also stated that to grant a complaint for disbarment of a member of the Court during the
member's incumbency would in effect be to circumvent and hence to run afoul of the constitutional mandate that members of the Court may be
removed from office only by impeachment.
In the subsequent case of In Re Raul M. Gonzales, 3 this principle of constitutional law was succinctly formulated in the following terms which
lay down a bar to the institution of certain actions against an impeachable officer during his or her incumbency.
. . . A public officer who under the Constitution is required to be a Member of the Philippine Bar as a qualification for the office held by
him and who may be removed from office only by impeachment, cannot be charged with disbarment during the incumbency of such
public officer. Further, such public officer, during his incumbency, cannot be charged criminally before the Sandiganbayan or any other
court with any offense which carries with it the penalty of removal from office, or any penalty service of which would amount to
removal from office. 4 (emphasis and underscoring supplied; italics in the original)
The Court clarified, however, that it is not saying that its members are entitled to immunity from liability for possible criminal acts or for alleged
violations of the canons of judicial ethics or codes of judicial conduct. It stressed that there is a fundamental procedural requirement that must be
observed before such liability may be determined and enforced.
. . . A Member of the Supreme Court must first be removed from office via the constitutional route of impeachment under Sections 2 and
3 of Article XI of the 1987 Constitution. Should the tenure of the Supreme Court Justice be thus terminated by impeachment, he may then
be held to answer either criminally or administratively (by disbarment proceedings) for any wrong or misbehaviour that may be proven
against him in appropriate proceedings. 5 (underscoring supplied) aTICAc
The Court declared the same principle in Jarque v. Desierto 6 by Resolution of December 5, 1995.
The rule that an impeachable officer cannot be criminally prosecuted for the same offenses which constitute grounds for impeachment
presupposes his continuance in office. Hence, the moment he is no longer in office because of his removal, resignation, or permanent
disability, there can be no bar to his criminal prosecution in the courts.
Nor does retirement bar an administrative investigation from proceeding against the private respondent, given that, as pointed out by the
petitioner, the former's retirement benefits have been placed on hold in view of the provisions of Sections 12 and 13 of the Anti-Graft and
Corrupt Practices Act. 7 (underscoring supplied)
The immediately-quoted pronouncement implies that the administrative investigation must be initiated during the incumbency of the respondent.
That the Supreme Court has overall administrative power over its members and over all members of the judiciary has been recognized. 8
Moreover, the Internal Rules of the Supreme Court (2010) 9 expressly included, for the first time, "cases involving the discipline of a Member of
the Court" 10 as among those en banc matters and cases. Elucidating on the procedure, Section 13, Rule 2 of the Court's Internal Rules provides:
SEC. 13.Ethics Committee. In addition to the above, a permanent Committee on Ethics and Ethical Standards shall be established
and chaired by the Chief Justice, with following membership:
a)a working Vice-Chair appointed by the Chief Justice;
b)three (3) members chosen among themselves by the en banc by secret vote; and
c)a retired Supreme Court Justice chosen by the Chief Justice as a non-voting observer-consultant.
The Vice-Chair, the Members and the Retired Supreme Court Justice shall serve for a term of one (1) year, with the election in the case of
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elected Members to be held at the call of the Chief Justice.
The Committee shall have the task of preliminarily investigating all complaints involving graft and corruption and violations of ethical
standards, including anonymous complaints, filed against Members of the Court, and of submitting findings and recommendations to
the en banc. All proceedings shall be completely confidential. The Committee shall also monitor and report to the Court the progress of
the investigation of similar complaints against Supreme Court officials and employees, and handle the annual update of the Court's ethical
rules and standards for submission to the en banc. (emphasis and underscoring supplied)
The Court acknowledged its power to take cognizance of complaints against its incumbent Members. It is circumscribed, however, by the
abovementioned principle of constitutional law 11 in terms of grounds and penalties.
In at least two recent instances, the Court had conducted administrative proceedings against its incumbent Members.
In the controversy surrounding the 1999 Bar Examinations, the Court, by Resolution of March 22, 2000 in Bar Matter No. 979, censured then
incumbent Justice Fidel Purisima for his failure to disclose on time his relationship to an examinee and for breach of duty and confidence, and
declared forfeited 50% of the fees due him as chairperson of the 1999 Bar Examinations Committee. The impositions did not, however, douse
the clamor for stiffer penalties on Justice Purisima in case he were found liable after a full, thorough and formal investigation by an independent
and impartial committee, which some quarters urged the Court to form. cHDaEI
Meanwhile, Justice Purisima retired from the Court on October 28, 2000. By Resolution of November 28, 2000, the Court ruled that "[h]is
retirement makes it untenable for this Court to further impose administrative sanctions on him as he is no longer a member of the Court" and
referred the bar matter to the Special Study Group on Bar Examination Reforms for report and recommendation.
The implication that the Court could have imposed further administrative sanctions on Justice Purisima had he not retired is a recognition that the
Court may discipline one of its sitting members.
Further, the Court did not explain why the "further" imposition of administrative sanctions was untenable except for the fact that Justice Purisima
was no longer a member of the Court. Could it be that the earlier imposed penalties (i.e., censure and partial forfeiture of fees) were already
considered sufficient? Could it be that the proper administrative case (arising from the earlier bar matter) was not instituted before Justice
Purisima retired? Or could it be that Justice Purisima's retirement benefits were already released to him, leaving the Court with nothing more to
go after to or impose (except, perhaps, disqualification to hold any government office)?
I thus submit that the failure to initiate an administrative proceeding prior to Justice Purisima's retirement made it untenable for the
Court to further impose administrative sanctions on him. What was confirmed by the Purisima case, nonetheless, for purposes of pertinent
discussion, is that the Court has jurisdiction to take cognizance of a complaint against an incumbent Justice.
Then there was the case In re: Undated Letter of Mr. Louis Biraogo 12 where Justice Ruben Reyes was, inter alia, "held liable for GRAVE
MISCONDUCT for leaking a confidential internal document of the Court" for which he was "FINED P500,000.00, to be charged against his
retirement benefits, and disqualified to hold any office or employment in any branch or instrumentality of the government including government-
owned or controlled corporations." 13 The question inBiraogo was not so much on the Court's jurisdiction over the case but on the effect of
Justice Reyes' subsequent retirement during the pendency of the case.
Unlike the present case, however, impeachment proceedings against Justices Purisima and Reyes did not see the light of day as they eventually
retired, which mandatory retirement either foreclosed the initiation of further administrative proceedings or directed the imposable sanctions to
the retirement benefits.
In view of the impeachment complaint filed with the House of Representatives involving the same subject matter of the case, which denotes that
a co-equal branch of government found the same act or omission grievous as to present a ground for impeachment and opted to exercise its
constitutional function, I submit that the Court cannot proceed with the administrative complaint against Justice Del Castillo for it will either (i)
take cognizance of an impeachable offense which it has no jurisdiction to determine, or (ii) downplay the questioned conduct and preempt the
impeachment proceedings.
I thus join the call of Justice Carpio to recall the Court's October 15, 2010 Resolution, but only insofar as Justice Del Castillo is concerned. All
related administrative concerns and issues involving non-impeachable officers therein should still be considered effectual.
In Biraogo, the unauthorized release of the unpromulgated ponencia of Justice Reyes in the consolidated Limkaichong cases spawned an
investigation to determine who were responsible for the leakage of the confidential internal document of the Court. The investigation led to the
disciplining of not just Justice Reyes but also two members of his staff, who were named without hesitation by the Court, viz., Atty. Rosendo B.
Evangelista and Armando Del Rosario, and who were held liable for SIMPLE NEGLECT OF DUTY and ordered to pay FINE in the amount
of P10,000.00 and P5,000.00, respectively. 14
Why, in the present case, the legal researcher who is hiding behind her credentials appears to be held a sacred cow, I cannot fathom. Hers is a
new (or better) specie of initialed personification (e.g., "xxx") under the likes of Cabalquinto 15 which should apply only to cases involving
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violence against women and children. 16 cESDCa
The unjustified non-disclosure of her identity is unfair to Atty. Evangelista who, aside from having his own credentials to protect, had to be
mentioned as a matter of course in the committee report adopted by the Court in In re: Undated Letter of Mr. Louis Biraogo, after similarly
cooperating with and explaining his side before the investigating committee.
Atty. Evangelista was eventually found by the Court to be wanting in care and diligence in securing the integrity and confidentiality of a
document. In the present case, the Court's October 15, 2010 per curiam Decision cleared the name of the unnamed legal researcher.
While what was at stake in Biraogo was the "physical integrity" of a ponencia, what is at stake in the present case is the "intellectual integrity" of
a ponencia. The Court is committing a disservice to its judicial function if it values the physical form of a decision more than what a decision
substantially contains.
Moreover, the liability of Justice Reyes did not save the day for Atty. Evangelista who, as the judicial staff head, was tasked to secure and protect
the copies of the Limkaichong Decision. Similarly in the present case, independently of Justice Del Castillo's "shortcomings," the legal
researcher, who was the lone drafter, proofreader and citechecker, was tasked like any other Court Attorney to secure and ensure the substance
and legal reasoning of the Vinuya Decision. Like Justice Reyes, Justice Del Castillo can only do so much in claiming responsibility and full
control of his office processes and shielding the staff under the mantle of his impeachable wings.
Notably, Rule 10.2 of Canon 10 of the Code of Professional Responsibility states that lawyers shall "not knowingly misquote or misrepresent the
contents of a paper, the language or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as law a provision
already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved." While the provision presupposes
knowledge or willful intent, it does not mean that negligent acts or omissions of the same nature by lawyers serving the government go scot-free.
Simple neglect of duty is defined as the failure to give proper attention to a task expected of an employee resulting from either carelessness or
indifference. 17
I submit that the legal researcher was remiss in her duties of re-studying the sources or authorities invoked in the Vinuya Decision and checking
the therein citations or, at the very least, those whose authors' rights to attribution and integrity are protected under Intellectual Property Law.
While it is incumbent upon her to devise ways and means of legal research, her admitted method or process as shown in the Vinuya case reflects a
disregard of a duty resulting from carelessness or indifference. She failed to exercise the required degree of care to a task expected of a lawyer-
employee of the Supreme Court.
While the Court recognizes that there were indeed lapses in the editorial work in the drafting of the Vinuya Decision, it easily attributed them to
"accidental deletions." It conveniently assigned such human errors to the realm of accidents, without explaining whether it could not have been
foreseen or avoided.
I, therefore, posit that the legal researcher, who must hitherto be named, is liable for Simple Neglect of Duty and must be ordered to pay a Fine in
the amount of, following Biraogo, P10,000.00, with warning of more severe sanctions for future similar conduct.
Whether liability attaches to what the October 15, 2010 per curiam Decision finds to be deletion or omission of citation "unquestionably due to
inadvertence or pure oversight," the fact remains, nonetheless, that there is a need for a textual correction of the Vinuya Decision. This Court
should cause the issuance of a corrected version in the form of, what Justice Ma. Lourdes P. A. Sereno suggests as, a "corrigendum."
The matter of making corrections in judicial issuances is neither novel nor something beneath the Court. As early as February 22, 2000, the Court
already accepted the reality of human error. In A.M. No. 00-2-05-SC, "In the Matter of Correction of Typographical Errors in Decisions and
Signed Resolutions," the Court provided a simple procedure in making proper corrections: HcaDIA
Inadvertent typographical errors in decisions and signed resolutions of the Court may occur every now and then. As these decisions and
signed resolutions are published and preserved for posterity in the Philippine Reports, the Supreme Court Reports Annotated, and other
publications as well as in the Supreme Court website, the need for making them free of typographical errors cannot be overemphasized.
Care should, therefore, be taken in proofreading them before they are submitted for promulgation and/or publication.
Nevertheless, should typographical errors be discovered after the promulgation and/or publication of decisions and resolutions, the
following procedure should be observed to the end that unauthorized corrections, alterations, or intercalations in what are public and
official documents are not made.
1.In case of decisions and signed resolutions with the author['s] names indicated, the Reporter and the Chief of the Management
Information Systems Office of the Supreme Court should secure the authority of the author concerned to make the necessary correction of
typographical errors. In case of per curiam decisions and unsigned resolutions, authority to make corrections should be secured from the
Chief Justice.
2.The correction of typographical errors shall be made by crossing out the incorrect word and inserting by hand the appropriate correction
immediately above the cancelled word. Such correction shall be authenticated by the author by signing his initials immediately below the
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correction. In per curiam decisions and unsigned resolutions, and in cases where the author is no longer a member of the Court, the
authentication shall be made by the Chief Justice.
3.The Reporter and the Chief of the Management Information Systems Office shall submit to the Court, through the Clerk of Court, a
quarterly report of decisions and resolutions in which corrections have been made. The Clerk of Court must thereafter include the report
in the agenda of the Court en banc. cSTCDA
This resolution takes effect immediately.
Despite the avowals of "slip in attribution," "bad footnoting," and "editorial error" in the Court's October 15, 2010 per curiam Decision, to date
no effort has been made to correct the Vinuya Decision in conformity with A.M. No. 00-2-05-SC, which only implies that the lapses are not
typographical in nature. The corrections of the Vinuya Decision cannot simply be made by crossing out the incorrect word and inserting by hand
the appropriate correction immediately above the cancelled word, with authentication by the ponente or writer.
BRION, J., concurring:
Background Facts
The present administrative disciplinary case against Supreme Court Associate Justice Mariano C. del Castillo stemmed from the decision he
penned for the Court in G.R. No. 162230, entitled Isabelita C. Vinuya, et al. v. Executive Secretary. The Vinuya Decision was promulgated on
April 28, 2010 with 13 justices of this Court concurring with the ruling to dismiss the case.
On July 19, 2010, Attys. Harry Roque and Rommel Bagares, counsels for petitioners Vinuya, et al., filed a Supplemental Motion for
Reconsideration raising, among others, the plagiarism allegedly committed by Justice del Castillo for using the works of three foreign legal
authors in his ponencia. They alleged that the use was without proper attribution and that Justice del Castillo twisted the foreign authors' works to
support the Decision. They considered it "highly improper for . . . the Court . . . to wholly lift, without proper attribution, from at least three
sources an article published in 2009 in the Yale Law Journal of International Law, 1 a book published by the Cambridge University Press in
2005, 2 and an article published in the Case Western Reserve Journal of International Law 3 and to make it appear that these sources support
the assailed Judgment's arguments for dismissing [their] petition[,] when in truth, the plagiarized sources even make a strong case for the
Petition's claims[.]" 4
In reply to the accusation, Justice del Castillo wrote and circulated a letter dated July 22, 2010 to the members of this Court. On July 27, 2010,
the Court decided to refer the letter to the Ethics and Ethical Standards Committee (the "Ethics Committee" or "committee") which
docketed it as an administrative matter. The committee required Attys. Roque and Bagares to comment on Justice del Castillo's letter, after
which it heard the parties. After the parties' memoranda, the committee submitted its findings and recommendations to the Court.
The Court's Decision on the Plagiarism

Charge against Justice del Castillo
In a Decision dated October 12, 2010, the Court resolved to dismiss the plagiarism charges against Justice del Castillo. It recognized that
indeed certain passages of the foreign legal article were lifted and used in the Vinuya Decision and that "no attributions were made to the . . .
authors in [its] footnotes." 5 However, the Court concluded that the failure to attribute did not amount to plagiarism because no malicious intent
attended the failure; the attributions (present in Justice del Castillo's original drafts) were simply accidentally deleted in the course of the drafting
process. Malicious intent was deemed an essential element, as "plagiarism is essentially a form of fraud where intent to deceive is inherent."
Citing Black's Law Dictionary's definition of plagiarism the deliberate and knowing presentation of another person's original ideas or creative
expressions as one's own the Court declared that "plagiarism presupposes intent and a deliberate, conscious effort to steal another's work and
pass it off as one's own." In fact, the Court found that by citing the foreign author's original sources, Justice del Castillo never created the
impression that he was the original author of the passages claimed to have been lifted from the foreign law articles:
The Court also adopts the Committee's finding that the omission of attributions to Criddle-Descent and Ellis did not bring about an
impression that Justice Del Castillo himself created the passages that he lifted from their published articles. That he merely got those
passages from others remains self-evident, despite the accidental deletion. The fact is that he still imputed the passages to the sources
from which Criddle-Descent and Ellis borrowed them in the first place.
As to the charge that Justice del Castillo twisted the meaning of the works of the foreign authors, the Court ruled that it was impossible for him to
have done so because: THCASc
first, since the attributions to Criddle-Descent and Ellis were accidentally deleted, it is impossible for any person reading the decision to
connect the same to the works of those authors as to conclude that in writing the decision Justice Del Castillo "twisted" their intended
messages. And, second, the lifted passages provided mere background facts that established the state of international law at various stages
of its development. These are neutral data that could support conflicting theories regarding whether or not the judiciary has the power
today to order the Executive Department to sue another country or whether the duty to prosecute violators of international crimes has
attained the status of jus cogens.
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The Court, thus, declared that "only errors [of judges] tainted with fraud, corruption, or malice are subject of disciplinary action" and these were
not present in Justice del Castillo's case; the failure was not attended by any malicious intent not to attribute the lifted passages to the foreign
authors.
Justice Maria Lourdes P. A. Sereno dissented from the Court's October 12, 2010 Decision based mainly on her disagreement with the majority's
declaration that malicious intent is required for a charge of plagiarism to prosper.
On November 15, 2010, Attys. Roque and Bagares filed a motion for reconsideration of the Court's October 12, 2010 Decision. This motion was
the subject of the Report/Resolution submitted to the Court for consideration. Incidentally, the same counsels filed an impeachment complaint
for betrayal of public trust against Justice del Castillo with the House of Representatives on December 14, 2010.
The Court's Action on the

Motion for Reconsideration
The Court referred the motion for reconsideration to the Ethics Committee and its Report recommended the dismissal of the motion for
reconsideration. The Report differentiated academic writing from judicial writing, declaring that originality of ideas is not required of a judge
writing decisions and resolving conflicts because he is bound by the doctrine of stare decisis the legal principle of determining points in
litigation according to precedents.
The Report likewise declared that the foreign authors, whose works were claimed to have been plagiarized, were not themselves the originators
of the ideas cited in the Vinuya Decision. While the Vinuya Decision did not mention their names, it did attribute the passages to the original
authors from whom these foreign authors borrowed the ideas. There was, thus, no intent on the part of Justice del Castillo to appropriate the ideas
or to claim that these ideas originated from him; in short, he did not pass them off as his own.
Justice Antonio T. Carpio dissented from the Report, based on two grounds:
a.the Court has no jurisdiction over the administrative case as it involves a sitting Supreme Court Justice, for alleged misconduct
committed in office; and
b.the judge, when writing judicial decisions, must comply with the law on copyright and respect the moral right of the author to
have the work copied attributed to him.
My Position
I fully support the conclusions of the Ethics Committee. I likewise take exception to Justice Carpio's Dissenting Opinion, specifically on his
position that the Court has no jurisdiction to discipline its Members as the only means to discipline them is through impeachment proceedings
that the Congress has the sole prerogative to undertake. Impeachment, he declares, functions as the equivalent of administrative disciplinary
proceedings. Since the Congress is given the exclusive power to initiate, 6 try, and decide 7 all cases of impeachment, Justice Carpio posits that
the Congress serves as the exclusive disciplining authority over all impeachable officers. He warns that for the Supreme Court to hear the present
administrative disciplinary case would be to usurp this exclusive power of Congress.
Jurisdiction of the Supreme Court to

Discipline its Members
A given in the discipline of Members of the Supreme Court is that they can only be "removed from office" through impeachment, as provided
under Article XI of the Constitution, on the specified grounds of culpable violation of the Constitution, treason, bribery, graft and corruption,
other high crimes, or betrayal of the public trust. The purpose of impeachment and the constitutional interest sought is to protect the people and
the State from official delinquencies and other malfeasances. 8 The Constitution, however, is not a single-purpose document that focuses on one
interest alone to the exclusion of related interests; impeachment was never intended by the Constitution to be the totality of the administrative
actions or remedies that the public or the Court may take against an erring Justice of the Court. Other related constitutional interests exist
touching on other facets of the Judiciary and public accountability. They are, by themselves, equally compelling and demanding of recognition.
cCaIET
Among the compelling interests that the Constitution zealously guards is judicial independence because it is basic to the meaning and purposes of
the Judiciary. This interest permeates the provisions of Article VIII of the Constitution. 9
Another interest to consider is the need for judicial integrity a term not expressly mentioned in the Article on the Judiciary (Article VIII), but
is a basic concept found in Article XI (on Accountability of Public Officers) of the Constitution. It is important as this constitutional interest
underlies the independent and responsible Judiciary that Article VIII establishes and protects. To be exact, it complements judicial independence
as integrity and independence affect and support one another; only a Judiciary with integrity can be a truly independent Judiciary. Judicial
integrity, too, directly relates to public trust and accountability that the Constitution seeks in the strongest terms. The same Article XI contains the
impeachment provisions that provide for the removal of Justices of the Supreme Court. Notably, a common thread that runs through all the
grounds for impeachment is the lack of integrity of the official impeached on these grounds.
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Still another unavoidable consideration on impeachment and its limited grounds is that it cannot, by itself, suffice to protect the people and foster
the public accountability that the Constitution speaks of. While it is a powerful weapon in the arsenal of public accountability and integrity, it is
not a complete weapon that can address and fully achieve its protective purposes. As discussed more fully below, not all complaints and
grievances can be subsumed under the defined constitutional grounds for impeachment. Members of the Court can commit other offenses not
covered by the impeachable offenses, for which other offenses they should equally be held accountable. These other offenses must of course be
administratively addressed elsewhere if they cannot be similarly addressed through impeachment; the people will not accept an interpretation that
these are offenses that fell through the constitutional cracks and can no longer be administratively addressed.
These considerations, taken together, dictate against the position of Justice Carpio that the Congress alone, through impeachment and to the
exclusion of this Court, can proceed against the Members of the Court.
Protection of Judicial Integrity
For the purpose of preserving judicial integrity, the Supreme Court has as much (and in fact, should have more) interest as the public or as any
other branch of the government in overseeing the conduct of members of the Judiciary, including its own Members. This is precisely the reason
for the Judiciary's Code of Judicial Conduct and the lawyers' Code of Professional Responsibility. Judicial integrity is not only a necessary
element in the orderly and efficient administration of justice; it is almost literally the lifeblood of the Judiciary. A Judiciary, dissociated from
integrity and the public trust that integrity brings, loses its rightful place in the constitutional democratic scheme that puts a premium on a reliable
and respected third branch of government that would balance the powers of the other two branches.
To ensure the maintenance and enhancement of judicial integrity, the Constitution has given the Judiciary, mainly through the Supreme Court, a
variety of powers. These powers necessarily begin with the power to admit and to discipline members of the bar 10 who are officers of the courts
and who have the broadest frontline interaction with the courts and with the public. Courts in general have the power to cite for contempt 11 that
proceeds, not only from the need to maintain orderly procedures, but also from the need to protect judicial integrity in the course of the courts'
exercise of judicial power. The Supreme Court has the power to discipline and remove judges of lower courts. 12 In this role, the Court hears
administrative disciplinary cases against lower court judges for purposes of redress against erring judges and, more importantly, to "[preserve]
the integrity of the judicial system and public confidence in the system and . . . [to safeguard] the bench and the public from those who are
unfit." 13
As concrete legal basis, the Supreme Court is expressly granted the general power of administrative supervision over all courts and the personnel
thereof. 14 By its plain terms, the power extends not only to the authority to supervise and discipline lower court judges but to exercise the same
powers over the Members of the Court itself. This is the unavoidable meaning of this grant of authority if its main rationale i.e., to preserve
judicial integrity is to be given full effect. The Supreme Court must ensure that the integrity of the whole Judiciary, its own Members included,
is maintained as any taint on any part of the Judiciary necessarily taints the whole. To state the obvious, a taint in or misconduct by any Member
of the Supreme Court even if only whispered about for lack of concrete evidence and patriotic whistleblowers carries greater adverse
impact than a similar event elsewhere in the Judiciary. DHITcS
Independent of the grant of supervisory authority and at a more basic level, the Supreme Court cannot be expected to play its role in the
constitutional democratic scheme solely on the basis of the Constitution's express grant of powers. Implied in these grants are the inherent powers
that every entity endowed with life (even artificial life) and burdened with responsibilities can and must exercise if it is to survive. The Court
cannot but have the right to defend itself to ensure that its integrity and that of the Judiciary it oversees are kept intact. This is particularly true
when its integrity is attacked or placed at risk by its very own Members a situation that is not unknown in the history of the Court. To be sure,
judicial integrity cannot be achieved if the Court can police the ranks of the lower court judges but not its own ranks. From this perspective view,
it is unthinkable that the Supreme Court can only watch helplessly for the reason that the power to act is granted only to Congress under the
terms of the Constitution as its own Members prostitute its integrity as an institution.
Impeachment Grounds are

Limited
That an impeachment partakes of the nature of an administrative disciplinary proceeding confined to the defined and limited grounds of "culpable
violation of the Constitution, treason, bribery, graft and corruption, other high crimes, and betrayal of public trust" 15 cannot be disputed.
However, it cannot likewise be disputed that these grounds, as defined, refer only to those serious "offenses that strike at the very heart of the life
of the nation." 16 Thus, for "betrayal of public trust" to be a ground for impeachment, the "manner of commission must be of the same severity
as 'treason' and 'bribery.'" 17 With respect to members of the High Court, impeachment is considered "as a response to serious misuse of judicial
power" 18 no less equivalent to treason or bribery.
Directly implied from these established impeachment principles is that "removal from office (the imposable penalty upon impeachment and
conviction) is not the price exacted for every incident of judicial misconduct." 19 Otherwise stated, that impeachment administratively addresses
only serious offenses committed by impeachable officers cannot imply that the Constitution condones misdemeanors and misconduct that are not
of equal gravity.
For, side by side with the constitutional provision on impeachment is the constitutional policy that "public office is a public trust" and that "public
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officers and employees must, at all times, be accountable to the people." 20 Even impeachable officials, despite the nature and level of their
positions, must be administratively accountable for misconduct and misdemeanors that are of lesser gravity than the defined impeachable
offenses. Only this approach and reconciled reading with the provision on impeachment can give full effect to the constitutional policy of
accountability. If this were not the case, then the public would be left with no effective administrative recourse against Supreme Court Justices
committing less than grave misconduct. One American writer, Brent D. Ward, writes on this point that:
It would be a serious weakness in our system to place systematic judicial misconduct beyond the reach of any remedy save
impeachment. There are limits beyond which no person even a federal judge should be allowed to go with impunity. The
courts themselves have the power and the duty to curtail the effect of repeated contrary and erratic actions of a judge that occur too
frequently to permit effective appellate supervision in the run of cases.
xxx xxx xxx
[The] Constitution does . . . shield [judges] from corrective action by other judges designed to ensure that the law is effectively
administered. The appellate courts have the power to prevent action so obviously improper as to place it beyond established rules of law.
21
Adverse Effects of Expansive

View of Impeachment Grounds
If impeachment were to be the only administrative proceeding to hold Justices of this Court accountable, then the grounds for impeachment may
arguably carry a definition beyond the traditionally grave or serious character these offenses have always carried. An expanded definition,
however, is no different from the remedy of burning a house to kill a rat. While such definition in the long run may kill more rats or assuredly do
away with a particularly obnoxious rat, it will at the same time threaten and adversely affect a more valuable constitutional interest the
independence of the Judiciary that allows magistrates to conscientiously undertake their duties, guided only by the dictates of the Constitution
and the rule of law.cSEAHa
It needs no elaborate demonstration to show that the threat of impeachment for every perceived misconduct or misdemeanor would open Justices
of the Court to harassment. A naughty effect if administrative redress can only be secured from Congress to the exclusion of this Court under
an expanded definition of impeachment grounds is to encourage every litigant with a perceived grievance against a Justice of this Court to run
to his congressman for the filing of an impeachment complaint.
Undoubtedly, this kind of scenario will be a continuing threat to judges and justices, with consequential adverse effects on the Judiciary, on inter-
branch relationship, and on the respect the public may give the Judiciary, the Legislature, and even of the government itself. Worse, this kind of
scenario may ultimately trivialize the impeachment process and is thus best avoided.
An expansive interpretation of the grounds for impeachment must also affect Congress which acts on impeachment complaints but whose main
task under our structure of government is to legislate, not to police the Supreme Court and other impeachable officers. To say the least, a deluge
of impeachment complaints may prove to be impractical for Congress because impeachment is both an arduous and a time consuming process
that will surely divert congressional time and other resources from the principal function of lawmaking.
The US Practice
In the United States (US) federal courts, "the impeachment process has not been the only check on federal judges [who are removable through
impeachment] who may have abused their independence, or the only assurance of their accountability." 22 The US National Commission on
Judicial Discipline and Removal has posited that there must be "a power in the judiciary to deal with certain kinds of misconduct [as this will
further] both the smooth functioning of the judicial branch and the broad goal judicial independence."
Along this line, the US Congress created a system enforcing an internal judicial self-discipline through the judicial councils under their Judicial
Councils Reform and Judicial Conduct and Disability Act of 1980 (the US 1980 Act). The judicial council (composed of the federal judges within
a specific judicial circuit) is considered as a "formal and credible supplement to the impeachment process for resolving complaint of misconduct
or disability against federal judges." 23 The judicial council of a federal circuit, through the chief judge, is authorized to receive and to act on
complaints about the conduct of judges who are removable only through impeachment. If there is merit to a complaint, the judicial council can
"take appropriate action, which may include censure, reprimand, temporary suspension, and transfer of cases, but not removal from office. If the
judicial council believes that it has uncovered grounds for impeachment, the council is empowered to report its findings to the Judicial
Conference of the United States, which after an investigation, may report its findings to the House of Representatives." 24
Arguably, the existence of a judicial council as an additional or supplemental check on US federal judges is statutory and no equivalent statute
has been enacted in our jurisdiction specifically establishing in our Supreme Court a system of internal judicial self-discipline. This argument,
however, loses sight of the constitutional authority of our Supreme Court to govern the conduct of its members under its power of general
administrative supervision over all courts a power that the Philippine Constitution expressly grants to our Supreme Court to the exclusion of
remedies outside of the Judiciary except only for impeachment. Interestingly, even in the US, the view has been taken that the enactment of a
statute conferring disciplinary power to the Court over its own members may be unnecessary as the Supreme Court itself may assume this power.
7/6/14, 3:36 PM
This is implied from the following recommendation of the US National Commission on Judicial Discipline and Removal which states:
[I]t may be in the [US Supreme] Court's best interest, as contributing to the public's perception of accountability, to devise and adopt
some type of formal procedure for the receipt and disposition of conduct and disability complaints.
The Commission recommends that the Supreme Court may wish to consider the adoption of policies and procedures for the filing and
disposition of complaints alleging misconduct against Justices of the Supreme Court. 25
Note should be taken in these regards that the Philippine Supreme Court has already put in place various Codes governing ethical rules for the
bar and for the Judiciary. The Code of Judicial Conduct applies to all members of the Judiciary, including the Members of the Supreme Court.
The Code of Professional Responsibility applies to all lawyers, thus, necessarily to Members of the Court for whom membership in the bar is
an essential qualification. The Court as well has codified the Internal Rules of the Supreme Court. A Rule on Whistleblowing is presently
under consideration by the Court en banc.
What is crucial in the establishment of the judicial council system in the US is the implication that no inherent incompatibility exists between
the existence of Congress' power to impeach and the Supreme Court's power to discipline its own members; the two powers can co-exist
and, in fact, even supplement each other. The constitutionality of recognizing disciplinary power in the courts over their own impeachable
members (as provided in the US 1980 Act), vis--vis the Congress' power to remove the same officials by impeachment, has been addressed
before the US Court of Appeals in the case of McBryde v. Commission to Review Circuit Council Conduct and Disability Orders of the Judicial
Conference of the US: 26 AaIDHS
Judge McBryde frames his separation of powers claim as whether the Constitution "allocates the power to discipline federal judges and,
if so, to which branches of government." Finding that it allocates the power to Congress in the form of impeachment, he concludes that it
excludes all other forms of discipline. But Judge McBryde's attempt to fudge the distinction between impeachment and discipline doesn't
work. The Constitution limits judgments for impeachment to removal from office and disqualification to hold office. It makes no
mention of discipline generally. The Supreme Court recently observed that it accepted the proposition that "[w]hen a statute limits a
thing to be done in a particular mode, it includes a negative of any other mode." But application of the maxim depends on the
"thing to be done." Here the thing to be done by impeachment is removal and disqualification, not "discipline" of any sort.
Thus, when the conduct of a member of the Supreme Court is improper but is not of such gravity to be considered as an impeachable offense, the
Court to protect its integrity may address the misconduct through an administrative disciplinary case against the erring member.
Conclusion: Court can hear

the case against Justice del
Castillo as an Administrative
Matter
What the impeachment provisions of the Constitution guarantee is simply the right to be removed from office only through the process of
impeachment and not by any other means; it does not preclude the imposition of disciplinary sanctions short of removal on the
impeachable official. Impeachment is the sole means of removal, but it is certainly not the sole means of disciplining Members of the
Supreme Court or, for that matter, public officials removable by impeachment.
Accordingly, I believe that the Court has the authority to hear the present administrative disciplinary case against Associate Justice Mariano del
Castillo; in case of a finding of misconduct, it can impose penalties that are not the functional equivalent of removal or dismissal from service. If,
in the exercise of its prerogative as interpreter of the Constitution, it determines that an act complained of falls within the defined grounds for
impeachment, then the Court should say so and forthwith forward its recommendations to Congress as the body constitutionally mandated to act
in impeachment cases.
Court's Interpretation of Plagiarism

limited to its Concept as an
Ethical violation of Members of the
Judiciary.
The dissatisfaction with the Court's October 12, 2010 Decision (resolving the plagiarism charge against Justice del Castillo or the "plagiarism
Decision") primarily lies with the Court's declaration that malicious intent is a necessary element in committing plagiarism. In the plagiarism
Decision, the Court said:
[P]lagiarism presupposes intent and a deliberate, conscious effort to steal another's work and pass it off as one's own.
Why we deemed malicious intent as a necessary element for judicial plagiarism can be explained by our repeated pronouncement that:
not every error or mistake committed by judges in the performance of their official duties renders them administratively liable. In the
absence of fraud, dishonesty or deliberate intent to do an injustice, acts done in their official capacity, even though erroneous, do
not always constitute misconduct.
7/6/14, 3:36 PM
Only errors that are tainted with fraud, corruption or malice may be the subject of disciplinary action. For administrative liability to
attach, respondent must be shown to have been moved by bad faith, dishonesty, hatred or some other motive. Indeed, judges may not be
held administratively liable for any of their official acts, no matter how erroneous, as long as they acted in good faith. 27
The term plagiarism does not have a precise statutory definition as it is not a matter covered by present Philippine statutes. 28 What the
Intellectual Property Code (Republic Act 8283) 29 defines and punishes is "copyright infringement." However, these terms are not legally
interchangeable. Laurie Stearns, copyright lawyer and author of the article "Copy Wrong: Plagiarism, Process, Property, and the Law" aptly
observes the distinctions between the two in this wise: CTEaDc
Plagiarism is not necessarily copyright infringement, nor is copyright infringement necessarily plagiarism. The two concepts diverge with
respect to three main aspects of the offense: copying, attribution and intent. In some ways the concept of plagiarism broader than
infringement, in that it can include the copying of ideas or of expression not protected by copyright, that would not constitute
infringement and it can include copying of small amounts of material that would be disregarded under copyright law. In other ways the
concept of infringement is broader, in that it can include both properly attributed copying and unintentional copying that would be
excused from being called plagiarism.
The divergence between plagiarism's popular definition and copyright's statutory framework suggests an essential contradiction between
what is at stake in plagiarism the creative process and what is at stake in copyright infringement the creative result. 30
Separately from these distinctions, the matter before the Court is Justice del Castillo's alleged plagiarism or failure to make attributions as an
ethical violation, not a copyright violation under the Intellectual Property Code. Given these distinctions, I see no reason to quibble over the
definition of plagiarism a term that, in the absence of any statutory limitation, the Court can define and interpret for purposes of its
administrative authority over all courts and the personnel thereof.
From the point of view of ethical rules, what are important are the intent in undertaking an act and the concepts of integrity, propriety, honesty
and impartiality for purposes of dispensing justice by an independent Judiciary. It is in this sense, and in light of the nature of the present case as
an administrative disciplinary charge against a Member of this Court, that the pronouncement of this Court on plagiarism and on the merits of the
ethical charge should be understood.
In this light, I find it misplaced for Justice Sereno to describe the Court's Decision as:
[creating] unimaginable problems for Philippine academia, which will from now on have to find a disciplinary response to plagiarism
committed by students and researchers on the justification of the majority Decision.
It has also undermined the protection of copyrighted work by making available to plagiarists "lack of malicious intent" as a defense to a
charge of violation of copy or economic rights of the copyright owner committed through lack of attribution.
xxx xxx xxx
Because the majority Decision has excused the lack of attribution to the complaining authors in the Vinuya decision to editorial errors and
lack of malicious intent to appropriate and that therefore there was no plagiarism lack of intent to infringe copyright in the case of
lack of attribution may now also become a defense, rendering the above legal provision meaningless. 31
When the Supreme Court acts on complaints against judges under its supervision and control, it acts as an administrator imposing discipline and
not as a court passing upon justiciable controversies. 32 It is precisely for this reason that disciplinary cases are docketed as "Administrative
Matters" or "A.M." 33 Hence, any interpretation by the Court of "plagiarism" is limited to this context and cannot be held to bind the academe in
undertaking its educational functions, particularly its own power to define plagiarism in the educational context. It likewise cannot bind Congress
in its role as the sole authority to determine what constitutes an impeachable offense, subject to what I stated above on the established scope of
impeachable offenses and the power of the Court to act in grave abuse of discretion situations under the Constitution. Specifically, a finding by
this Court that plagiarism was or was not committed cannot preclude Congress from determining whether the failure or omission to make an
attribution, intentionally or unintentionally, amounts to a "betrayal of public trust."
For these reasons, I support the conclusion of the Ethics and Ethical Standards Committee that Justice Mariano C. del Castillo's attribution lapses
did not involve any ethical violation. I vote for the approval of the Committee's Report and for the denial of the petitioners' Motion for
Reconsideration. HDaACI
ABAD, J., concurring:
I fully concur in the majority opinion and would like to react to the separate dissenting opinions of Justices Antonio T. Carpio and Maria Lourdes
P.A. Sereno.
Justice Carpio has again graced the Court's rulings in this case with his typically incisive dissenting opinion. Still, I cannot agree with his views.
He asserts that the sole disciplining authority of all impeachable officers, including the Justices of this Court, lies in Congress. This is quite true
but only with respect to impeachable offenses that consist in "culpable violation of the Constitution, treason, bribery, graft and corruption, other
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high crimes, or betrayal of public trust," 1 all offenses that warrant the removal of such officers and disqualification for holding any office in the
government. 2 The Supreme Court has no intention of exercising the power of impeachment that belongs to Congress alone.
Certainly, however, the Supreme Court has the administrative authority to investigate and discipline its members for official infractions that do
not constitute impeachable offenses. This is a consequence of the Court's Constitutional power of "administrative supervision over all courts and
the personnel thereof." 3 When the Court decided earlier the plagiarism charge filed against Justice Mariano Del Castillo by the petitioners in
Vinuya, it was under a belief that "plagiarism," which is not even a statutory offense, is an administrative infraction. The petitioners in that case
did not themselves object to the proceedings conducted by the Court's Ethics Committee.
Subsequently, a complaint for impeachment was filed against Justice Del Castillo before the House of Representatives based on the same charge
of plagiarism. The Court cannot do anything about that but it is not the Court, denying the motion for reconsideration filed in the present case,
which will provoke a constitutional crisis; if ever, it is the House of Representatives that will do so, seeing that the Court has already acted on
such a charge under an honest belief that plagiarism is an administrative rather than an impeachable offense.
Whether plagiarism is an administrative or an impeachable offense need not be decided by the Court in this case since no actual dispute has
arisen between Congress and the Court regarding it.
As for the alleged violation of the copyright law in this case, it should be sufficient to point out that no such charge has been lodged against
Justice Del Castillo. What is more, the Court has no original jurisdiction over copyright law violations. I reserve in the appropriate case my view
on whether or not lifting from copyrighted articles, without attribution, solely for the purpose of rendering a decision, constitutes violation of the
copyright law.
Justice Sereno castigates the majority in the Court for lowering the standards for judicial scholarship, negating the educative and moral
directional value in the writing and publishing of decisions, bending over backwards to deny the objective existence of gross plagiarism, and
condoning dishonesty in the exercise of a function central to the role of the courts.
But our courts are in the business, not of "judicial scholarship," but of deciding fairly and honestly the disputes before them, using precedents and
legal literature that, according to American scholars, belong to the public domain. If this is not honest work for a judge, I do not know what is.
And Justice Sereno has no right to preach at the expense of the majority about "educative and moral directional value" in writing published
articles. For one thing, her standards are obviously for work done in the academe, not for the judge plodding at his desk to perform government
work. For another, I note that on occasions she has breached those very standards, lifting from works of others without proper attribution.
Take Justice Sereno's article, "Toward the Formulation of a Philippine Position in Resolving Trade and Investment Disputes in APEC." 4 Under
the section subtitled "The WTO Dispute Settlement Mechanism," she said in the footnote that "[t]his section is drawn from Article XX and XXIII
of the GATT 1994, Understanding on Dispute Settlement, and Working Procedures." To me, this means that in writing the section, she drew ideas
from these four GATT issuances. HCEcaT
I am reproducing below the beginning portions of Justice Sereno's work that are relevant to this discussion. I underline what she copied verbatim
from Annex 2 of the General Agreement on Tariffs and Trade (GATT) 1994, entitled "Understanding on Rules and Procedures Governing the
Settlement of Disputes," or "Understanding on Dispute Settlement" for short.
The WTO Dispute Settlement Mechanism
Dispute settlement under the WTO mechanism is the prompt settlement of situations in which a member considers that any
benefit accruing to it directly or indirectly under the WTO Agreement is being impaired by measures taken by another member.
A dispute settlement mechanism aims to secure a positive solution to a dispute. Thus, a solution mutually acceptable to the parties
to a dispute is preferred. However, in the absence of a mutually agreed solution, the first objective is usually to secure the
withdrawal of measures concerned. A measure is any internal act, whether a law, an administrative action, or a judicial decision
of a member.
The DSB is the WTO organ that is mandated to administer the rules and procedures that govern the settlement of disputes. It is
made up of the representatives of all the members of the WTO. Each member is entitled to one vote.
The DSB has the following powers and functions: (a) to establish panels, (b) to adopt or reject panel and Appellate Body reports,
(c) to maintain surveillance of the implementation of rulings and recommendations, and (d) to authorize the suspension of
concessions and other obligations. It is understood that requests for conciliation and the use of the dispute settlement procedures
should not be viewed as contentious acts. Members engage in this procedure to resolve disputes. [copied]
If a measure adopted by a country (A) within its territory impinges on, for example, the exports of another country (B), the first
step in dispute settlement is the filing of a request for consultation by the complainant. In this case, B is the complainant.
If B requests consultation with A, then A must consider the complaint of B. A must reply to the request within 10 days after its
receipt and enter into consultations with B in good faith within a period of 30 days from the date of the request, with a view to
7/6/14, 3:36 PM
reaching a mutually satisfactory solution. If A does not respond within 10 days, does not enter into consultations within a period
of 30 days from the filing of the request, and if the consultation fails to settle a dispute within 60 days after the request for
consultation, then B may proceed to request the establishment of a panel.
Good offices, conciliation, and mediation may be requested at any time by any party to a dispute. They may begin and be
terminated at any time. Once they are terminated, the complaining party can then request the establishment of a panel.
If the complaining party so requests, a panel may be established by the DSB. The function of the panel is to assist the DSB in
discharging its responsibilities. Accordingly, a panel should make an objective assessment of the matter before it, including the
facts of the case and the applicability and conformity of the measure with the relevant agreements. It should also make other
findings that will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements,
besides consulting regularly with the parties to the dispute and giving them adequate opportunity to develop a mutually
satisfactory solution. [Copied]
The request for the establishment of a panel should be made in writing, indicate whether consultations were held, identify the
specific measures at issue, and provide a brief summary of the legal basis of the complaint. [Copied] cSEAHa
xxx xxx xxx
Notably, Justice Sereno began her above discussion with ideas presumably from her four sources, which she put together and fashioned into her
own sentences and paragraphs. The ideas were from GATT but the presentation was original Sereno. Down the line, however, without
introduction or preamble, she copied verbatim into her work portions from Understanding on Dispute Settlement, without citing this specific
source. More, she did not use quotation marks to identify the copied portions. She thus made ordinary readers like me believe that she also
crafted those portions. To borrow a word from the civil code, she "co-mingled" the work of others with hers, erasing the identity of the lifted
work.
Justice Sereno's explanation is that, since she was drawing from the rules embodied in GATT's Understanding on Dispute Settlement, she did not
have to make attributions to those rules at each turn of her writing. She may be correct if she in fact properly cited those rules the first time she
copied from it and, further, indicated a clear intent to do further copying down the line. But she did not. Properly, she could have written:
xxx xxx xxx
The DSB has the following powers and functions: (a) to establish panels, (b) to adopt or reject panel and Appellate Body reports, (c) to
maintain surveillance of the implementation of rulings and recommendations, and (d) to authorize the suspension of concessions and
other obligations. GATT's Understanding on Dispute Settlement has a lot to say about the subject and some are mentioned here.
For one it says, "It is understood that requests for conciliation and the use of the dispute settlement procedures should not be . . . as
contentious acts. Members engage in . . . procedure to resolve disputes."
xxx xxx xxx
Further, she did not identify the portions she copied verbatim in order to set them apart from her own writing. Under the rule that she foists on
Justice Del Castillo, quotation marks must be used whenever verbatim quotes are made. 5 This requirement is all the more important since,
unlike domestic rules, the rules of GATT are unfamiliar terrain to most readers. Thus, at the next turn, she could have at least enclosed in
quotation marks the other portions she copied verbatim from her source like this:
If the complaining party so requests, a panel may be established by the DSB. "The function of the panel is to assist the DSB in
discharging its responsibilities. Accordingly, a panel should make an objective assessment of the matter before it, including the
facts of the case and the applicability and conformity of the measure with the relevant agreements. It should also make other
findings that will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements .
. . consul . . . regularly with the parties to the dispute and giving them adequate opportunity to develop a mutually satisfactory
solution."
"The request for the establishment of a panel should be made in writing, indicate whether consultations were held, identify the
specific measures at issue, and provide a brief summary of the legal basis of the complaint."
What is more, learned lawyers would always set apart the laws or rules that they cite or invoke in their work since these are expressions of a
higher grade than their comments or opinions. A lawyer's opinion can persuade but a rule or a law is binding. I have yet to see a Supreme Court
decision that copies verbatim a specific rule or law, which it invokes to support such decision, without distinctly calling it what it is or citing its
source.
Below is the rest of the verbatim copying that she made from Understanding on Dispute Settlement in the section she wrote without attribution or
quotation marks. DTCSHA
Sereno, J.Original work GATT Annex 2,

Understanding on Dispute Settlement
After receipt of comments from theFollowing the expiration of the set period of
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parties, the panel shall issue an interimtime for receipt of comments from the parties
report to them, including both theto the dispute, the panel shall issue an
descriptive sections and the panel'sinterim report to the parties, including
findings and conclusions. The partiesboth the descriptive sections and the
may submit written requests for the panelpanel's findings and conclusions. Within a
to review precise aspects of the interimperiod of time set by the panel, a party may
report for which the panel shall meetsubmit a written request for the panel to
with the parties. If no comments arereview precise aspects of the interim report
received from any party within theprior to circulation of the final report to the
comment period, the interim report shallMembers. At the request of a party, the panel
be considered the final panel report andshall hold a further meeting with the parties
circulated promptly to the members.on the issues identified in the written
(page 7)comments. If no comments are received
from any party within the comment
period, the interim report shall be
considered the final panel report and
circulated promptly to the Members.
[Article 15.2, GATT Annex 2]
When a panel or the AB concludes that aWhere a panel or the Appellate Body
measure is inconsistent with a coveredconcludes that a measure is inconsistent
agreement, it shall recommend that thewith a covered agreement, it shall
member concerned bring the measurerecommend that the Member concerned
into conformity with that agreement. Inbring the measure into conformity with
addition to its recommendations, thethat agreement. In addition to its
panel or AB may suggest ways by whichrecommendations, the panel or Appellate
the member concerned could implementBody may suggest ways in which the
the recommendations. (page 8)Member concerned could implement the
recommendations. CDAEHS

The DSB shall adopt the report within 60Within 60 days after the date of circulation
days of the issuance of a panel report toof a panel report to the Members, the
the members, unless one of the parties toreport shall be adopted at a DSB meeting
the dispute formally notifies the DSB of unless a party to the dispute formally
its decision to appeal, or the DSBnotifies the DSB of its decision to appeal or
decides by consensus not to adopt thethe DSB decides by consensus not to adopt
report. If the panel report is on appeal,the report. If a party has notified its
the panel report shall not be considereddecision to appeal, the report by the panel
for adoption by the DSB until theshall not be considered for adoption by the
completion of the appeal. (page 7-8)DSB until after completion of the appeal.
It may uphold, modify, or reverse theThe Appellate Body may uphold, modify or
legal findings and conclusions of thereverse the legal findings and conclusions of
panel. (page 8)the panel.
Note that the AB reviews only issues of An appeal shall be limited to issues of law
law covered in the panel report and legalcovered in the panel report and legal
interpretation developed by the panel.interpretations developed by the panel.
(page 8)
The DSB shall keep under surveillanceThe DSB shall keep under surveillance the
the implementation of adoptedimplementation of adopted
recommendation or rulings. Anyrecommendations or rulings. The issue of
member may raise the issue of implementation of the recommendations
implementation of the recommendationsor rulings may be raised at the DSB by any
or rulings at the DSB anytime followingMember at any time following their
their adoption. (page 8)adoption.
Going to another item in the same article, Justice Sereno copies significant lines from Oppenheim's Treatise without making an attribution to that
work.
Sereno, J.Original work Oppenheim's Treatise

In mediation, the third party facilitatesThe difference between [good offices and
the negotiations between the partiesmediation] is that, whereas good offices
concerned. It involves direct conduct of consist in various kinds of action
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negotiations between the parties at issuetending to call negotiations between the

on the basis of proposals made by theconflicting States into existence,
mediator.mediation consists in a direct conduct of
negotiations between the differing
On the other hand, good offices are aparties on the basis of proposals made
friendly offer by a third party, whichby the mediator.
tries to induce disputants to negotiate
among themselves. Such efforts may[Oppenheim, International Law, A
consist of various kinds of actionsTreatise volume 2 page 11 (1920)]
tending to call negotiations between
conflicting states into existence.
(page 11) HAaDTE
Justice Sereno explains that "trite, common, standard statement[s]" like the ones she copied from Oppenheim has "nothing original at all about
[them]" and need no citation or quotation marks. This is true. Indeed, the Court acknowledged in its October 12, 2010 decision that no plagiarism
could be committed respecting "common definitions and terms, abridged history of certain principles of law, and similar frequently repeated
phrases that, in the world of legal literature, already belong to the public realm." But I cite the above because Justice Sereno would not grant to
Justice Del Castillo the liberty to use common definitions and terms in his ponencia without the correct attribution.
In the original draft of this concurring opinion that I circulated among the members of the Court, I mentioned an article published in 2007 that
Justice Sereno wrote with two others entitled Justice and the Cost of Doing Business. 6 I found that a portion of this article appeared to have been
reproduced without attribution from a 2005 publication, the Asian Development Bank Country Governance Assessment (Philippines) 2005. 7
Justice Sereno has since explained to my satisfaction that such portion came from the three co-authors' earlier 2001 report submitted to the World
Bank (WB). I am dropping it as a case of omission of attribution.
Parenthetically, however, in the academic model, "dual and overlapping submissions" is a thesis writer's sin. It simply means that the same
academic work is submitted to gain credit for more than one academic course. 8 In the publishing world, while not prohibited across the board,
law journals and reviews frown upon authors who submit manuscripts which have been previously published elsewhere, since the purpose of
publication is the circulation and distribution of original scholarship and the practice would permit the author to be credited twice for the same
work.
Notably, from the papers she furnished the members of the Court, it would seem that the WB Danish Trust Fund commissioned and paid for the
2001 study that Justice Sereno and her co-authors undertook. Indeed, the cover page of the WB paper she also provided shows that it was part of
the "Document of the World Bank." I would assume, however, that Justice Sereno obtained WB authorization for the subsequent publication of
the report in 2007.
Next, in her memorandum for petitioners-intervenors Franklin M. Drilon and Adel A. Tamano in Province of North Cotabato, et al. v.
Government of the Republic of the Philippines Peace and Panel on Ancestral Domain, et al., 9 Justice Sereno lifted a famous phrase from the
United States' case of Baker v. Carr, 169 U.S. 180, without making attribution to her source.
J. SerenoOriginal Work Baker v. Carr

Second, there is no lack of a judiciallyProminent on the surface of any case held
discoverable and manageable standardto involve a political question is found a
for resolving the question, nortextually demonstrable constitutional
impossibility of deciding the questioncommitment of the issue to a coordinate
without an initial policy determinationpolitical department; or a lack of
of a kind clearly for non-judicialjudicially discoverable and manageable
discretion.standards for resolving it; or the
impossibility of deciding without an
initial policy determination of a kind
clearly for non-judicial discretion . . .
[Baker v. Carr, 169 U.S. 186]
Justice Sereno explains that, since she earlier cited Baker v. Carr in her memorandum, it would be utterly pointless to require her to repeat her
citation as often as excerpts from the case appear down the line. It is not quite pointless because one who copies from the work of another has an
obligation, she insists in her dissent, to make an attribution to his source. Otherwise, a writer can simply say at the start of his article that he is
copying from a list of named cases and it would be up to the reader to guess where the copied portions are located in that article. An explanation
like this from an academician is disheartening.
In another article, Uncertainties Beyond The Horizon: The Metamorphosis of the WTO Investment Framework in the Philippine Setting, 10
Justice Sereno also copied from the World Trade Organization fact sheet on line (prepared by the United States Department of Agriculture)
without using quotation marks, and made the material appear to be her own original analysis. Thus: ICHcTD
7/6/14, 3:36 PM
J. SerenoOriginal Work WTO Factsheet

The World Trade Organization (WTO)The World Trade Organization (WTO),
was established on January 1, 1995. It established on January 1, 1995, is a
is a multilateral institution charged withmultilateral institution charged with
administering rules for trade amongadministering rules for trade among
member countries. The WTO functionsmember countries. . . .
as the principal international bodyThe WTO functions as the principal
concerned with multilateral negotiationsinternational body concerned with
on the reduction of trade barriers andmultilateral negotiations on the
other measures that distort competition.reduction of trade barriers and other
The WTO also serves as a platform for measures that distort competition. The
countries to raise their concernsWTO also serves as a platform for
regarding the trade policies of theircountries to raise their concerns
trading partners. The basic aim of theregarding the trade policies of their
WTO is to liberalize world trade andtrading partners. The basic aim of the
place it on a secure basis, therebyWTO is to liberalize world trade and
contributing to economic growthplace it on a secure basis, thereby
and development.contributing to economic growth and
development.
[WTO FACTSHEET http://www.fas.usda.
gov/info/factsheets/wto.html (last
accessed February 13, 2008)]
Here again, Justice Sereno ignores her unbendable rule that one commits plagiarism by his "[f]ailure to use quotation marks to indicate that the
entire paragraph in the body of the decision . . . was not the ponente's original paragraph, but was lifted verbatim from [another's] work."
In his book entitled Economic Analysis of Law (2nd edition, 1977), Judge Richard A. Posner wrote:
. . . Hence, settlement negotiations will fail, and litigation ensue, only if the minimum price that the plaintiff is willing to accept in
compromise of his claim is greater than the maximum price the defendant is willing to pay in satisfaction of that claim. (At p. 435)
Justice Sereno copied the above verbatim in her article entitled Lawyers' Behavior and Judicial Decision-Making 11 published in the Philippine
Law Journal, without quotation marks or attribution to Judge Posner. Thus, she wrote:
. . . [S]ettlement negotiations will fail and litigation will ensue if the minimum price that plaintiff is willing to accept in
compromise of his claim is greater than the maximum price that the defendant is willing to pay in satisfaction of that claim. (At
page 483)
In other sections of the same article that Justice Sereno wrote, she either copied verbatim from Judge Posner or mimicked his ideas without
attributing these to him. Thus:
Judge Posner wrote
A somewhat more plausible case can be made that judges might slant their decisions in favour of powerful interest groups in order to
increase the prospects of promotion to higher office, judicial or otherwise. . . . (At p. 416)
Justice Sereno mimicked HDATSI
The third is that the judge maximizes the prospects of his promotion to a higher office by slanting his decisions in favor of
powerful interest groups. (page 489)
Judge Posner wrote
Presumably judges, like the rest of us, seek to maximize a utility function that includes both monetary and non-monetary elements . . . .
(At p. 415)
Justice Sereno mimicked
In understanding judicial behaviour we have to assume that judges like all economic actors maximize a utility function. This
function in all probability includes material as well as non-material factors. . . . (At page 489)
Judge Posner wrote
[T]he rules of the judicial process have been carefully designed both to prevent the judge from receiving a monetary payoff from deciding
a particular case one way or the other and to minimize the influence of politically effective interest groups in his decisions. [At p. 415]
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The first is that the American judicial system have rules designed to minimize the possibilities of a judge maximizing his financial
interest by receiving a bribe from a litigant or from acceding to a politically powerful interest group by making the rules work in
such a manner as to create disincentives for the judge ruling in such a manner (page 489)
Judge Posner wrote
It is often argued, for example, that the judge who owns land will decide in favor of landowners, the judge who walks to work will be in
favour of pedestrians. [Posner, 415]
The second proceeding from the first is that the judge maximizes the interest of the group to which he belongs. If he belongs to the
landowning class he will generally favor landowners and if he walks to work, he will generally favor pedestrians. (page 489)
Judge Posner wrote
[J]udges seek to impose their preferences, tastes, values, etc. on society. [Posner, 416]
The last is that judges maximize their influence on society by imposing their values, tastes and preferences thereon. (page 489)
Using the severe standards she sets for Justice Del Castillo in Vinuya, i.e., "objective existence of plagiarism," I am afraid that any explanation of
good faith or lack of malicious intent on Justice Sereno's part in copying without proper attribution from the work of Judge Posner would not be
acceptable.
Still I can concede that Justice Sereno may not have intended to plagiarize the work of others even if she copied verbatim from them without
proper attribution or quotation marks. Her above articles were, taken as whole, essentially hers. I regret, however, that since she wrote them as an
academician bound by the high standards that she and the University of the Philippines where she taught espouse, she may have failed,
borrowing her own phrase, to set the correct "educative and moral directional value" for the young. cADEHI
Justice Del Castillo, who did not write as an academician but as a judge, is at least entitled to the liberties granted judges in writing decisions.
I vote to DENY the motion for reconsideration filed in this case.
SERENO, J., dissenting:
Judges need not strain themselves to meet inapplicable standards of research and attribution of sources in their judicial opinions, nor seek to
achieve the scholarly rigidity or thoroughness observed in academic work. They need to answer to only two standards diligence and honesty.
By honesty here is meant that good faith attempt to attribute to the author his original words and analysis.
Even if a judge has to rely in large part on the drafts of his legal researchers, the work of a diligent and honest judge will never display the severe
plagiarism evident in the Vinuya Decision published under the name of Justice Mariano C. del Castillo. A judge will only find himself in the same
predicament as Justice del Castillo if two situations coincide: (1) the judge wittingly or unwittingly entrusts a legal researcher with the task of
drafting his judicial opinion, and the legal researcher decides to commit severe plagiarism; and (2) the judge: (a) does not read and study the draft
decision himself; (b) even if he does read and study the same, the "red flags" that are self-evident in the draft decision completely escape him; or
(c) despite having seen the red flags, he ignores them.
We use the words "severe plagiarism" here deliberately because not only were three (3) works of the four (4) complaining authors 1 plagiarized
in Vinuya, text from the following copyrighted works was copied without attribution as well: essays contributed by Robert McCorquodale and
Phoebe Okowa to the book International Law, edited by Malcolm Evans; an article written by Mariana Salazar Albornoz, entitled Legal Nature
and Legal Consequences of Diplomatic Protection: Contemporary Challenges; an article written by Elizabeth Prochaska, entitled Testing the
Limits of Diplomatic Protection: Khadr v. The Prime Minister of Canada; a report by Larry Niksch, entitled Japanese Military's Comfort Women;
and an article by James Ladino, entitled Ianfu: No Comfort Yet for Korean Comfort Women and the Impact of House Resolution 121. In addition,
incorporated into Vinuya were excerpts from a decision of an international tribunal without any signal given to the reader that the words were not
those of Justice del Castillo of the Philippine Supreme Court but the words of another tribunal. While there are views that a judge cannot be
guilty of plagiarism for failure to recognize foreign decisions as source materials in one's judicial writing as when Justice Antonio C. Carpio
opines that a judge cannot be guilty on this score alone it is beyond debate that there is a duty of care to attribute to these foreign and
international judicial decisions properly, and that one should never present these materials as if they are one's own.
An estimate of the extent of the plagiarism in the Vinuya Decision has been made by my office. The best approximation available to us, using the
"word count" feature of Microsoft Word, reveals that 52.9% of the words used in the Vinuya Decision's discussion on international law, which
7/6/14, 3:36 PM
begins in page 24 and continues to the end (2,869 out of 5,419 words), are copied without attribution from other works. ECSHID
The Vinuya Decision, therefore, because of the severity of the plagiarism attending it, is the worst possible context for the Majority to draw, in its
Decision dated 12 October 2010 and in its Resolution denying the Motion for Reconsideration, the following conclusions:
1.that plagiarism requires the element of "malicious intent";
2.that calibrating its ruling in response to the outcry of the academic community after the Majority Decision was issued the rules
against plagiarism applicable to the academic community do not apply to judicial decisions;
3.that the standard of attribution applicable to judicial decisions is effectively, no standard at all a judge cannot be guilty of plagiarism
as understood by the academic world, and neither is he liable for copying without attribution, even from copyrighted materials;
4.that this lack of liability extends as well to benefit lawyers in the submission of their pleadings before courts; and
5.that on the whole, the Vinuya Decision is the product of hard, honest, original work.
In the course of the resolution of the Motion for Reconsideration, I have found myself counter-accused of having copied the works of others
without attribution. I have debunked each of these claims and lay them bare in this Dissent. I have even proven that it was one of my co-authored
works that was copied without attribution being given to me and to my co-authors. The theory propounded against me is that I cannot conclude
that the Vinuya Decision is partly a product of plagiarism unless I am willing to call myself a plagiarist as well. I emphasize, however, my
original thesis that a diligent and honest judge or researcher will never find himself to have plagiarized, even unwittingly, to the same extent
that plagiarism occurred in the Vinuya Decision. Herein lies the safety of a researcher a habit of trying to give recognition where recognition is
due. Should any of my works, wherein I failed to make proper attribution, surface, I will do what I have recommended that the author of the
Vinuya Decision do: acknowledge the wrong, apologize to the wronged, and correct the work. See pages 58 to 75 herein for a discussion on the
counter-accusations leveled against me.
Irrespective of the outcome of my analysis, let it be stated that this Dissent does not make any pronouncement regarding the jurisdiction of this
Court over the complaint for plagiarism against Justice del Castillo. My esteemed colleague Justice Carpio is convinced that Congress is the sole
disciplining authority of all impeachable officers, including Justices of the Supreme Court. He characterizes plagiarism as a betrayal of public
trust, and thus, "impeachment by Congress takes the place of administrative disciplinary proceedings against impeachable officers as there is no
other power that can administratively discipline impeachable officers." 2
I.The Flow of the Analysis in this Dissent

A.Parameters
To allay any concern from members of the judiciary, I have been very careful to underscore the limitations of my analysis of the Vinuya Decision.
My Dissent of 12 October 2010 is very clear:
In a certain sense, there should have been less incentive to plagiarize law review articles because the currency of judges is stare decisis.
One wonders how the issue should have been treated had what was plagiarized been a court ruling, but that is not at issue here. The
analysis in this opinion is therefore confined to the peculiar situation of a judge who issues a decision that plagiarizes law review
articles, not to his copying of precedents or parts of the pleadings of the parties to a case. 3
To be categorical, a judge or legal researcher cannot be guilty for using doctrines that have been incorporated into the mainstream and are
standard terms of trade. Neither is a judge required to use quotation marks or blockquotes every time there is a reference to allegations in the
pleadings of parties, or when he is discussing legal arguments using already accepted legal doctrines. It is when he ventures into using the
original words of others, especially those of legal scholars, that he must be particularly careful. He cannot write to pass off the words of others,
especially those of others' pioneering works, as his own. To do so is dishonest. It has also been suggested that Justice del Castillo cannot be guilty
of plagiarism as he never read the work of Mariana Salazar Albornoz. That argument is neither here nor there. At the very least, the words he
copied were those of another in an important original analysis of the state of international law on rape.
B.Structure of the Technical Analysis in This Dissent
The structure and rigidity of the Technical Analysis in this Dissent is necessary to fulfill two purposes: (1) to enable the reader to examine
whether I have scientific and objective basis to conclude that severe plagiarism characterizes the Vinuya Decision; and (2) to examine whether I
am willing to subject my work to the same standards to which I have subjected the Vinuya Decision. cdtai
One interesting note. My professional record had been vetted by the Judicial and Bar Council prior to my appointment to this Court. My previous
works those of an academic and those of a pleader are presently being, and, I expect will continue to be, thoroughly scrutinized. While
those previous works form part of the basis of my appointment, inasmuch as they are proof of my competence and expertise, they cannot serve as
a basis to determine whether I am now performing my duties as a judge satisfactorily. One can view the scrutiny as an unwarranted collateral
attack on my record. This did not happen until my Dissent of 12 October 2010.
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The first part of the Technical Analysis consists of new tables of comparison presenting more instances of plagiarism as they occur in the Vinuya
Decision. Two of these tables deal with copied works that previously appeared in my earlier Dissent: A Fiduciary Theory of Jus Cogens, by Evan
J. Criddle and Evan Fox-Decent, and Breaking the Silence: Rape as an International Crime by Mark Ellis; however, the entries for these tables
present instances of plagiarism not discussed or presented in my Dissent of 12 October 2010. Following the tables are lists of violations of rules
against plagiarism, each list item corresponding to one table entry.
Following the presentation of the tables, the process whereby plagiarism could have been committed in Vinuya is examined. The severe extent of
plagiarism, which is already evident in the tables, is discussed further, followed by an analysis of the systematic commission of plagiarism in
Vinuya. This analysis consists of the detailed dissection of specific parts of the Vinuya decision: the text of the body in pages 31-32, and the first
paragraph of footnote 65. The research process purportedly used by the legal researcher of Vinuya is then broken down into separate steps that
illustrate the decision points at which an honest and diligent researcher would have ensured that proper attribution to sources be given. This is
then followed by a closer examination of the deletion of existing citations and the features of Microsoft Word relevant to the deletion of
footnotes.
II.Technical Analysis of Plagiarism in Vinuya

A.More Plagiarism
Below are new tables of comparison excluding materials in tables already discussed in my earlier Dissent to the majority Decision in AM
10-7-17-SC of excerpts from the Decision in Vinuya vis-a-vis text from one (1) book on international law, five (5) foreign law journal articles,
and a copyrighted report of the United States Congressional Research Service. While the degree of seriousness of the offense of unattributed
copying varies with the kind of material copied, the extent of the copying conveys the level of honesty or dishonesty of the work done with
respect to the Vinuya Decision. The extent of copying enumerated in these tables also renders incredible the claim of mechanical failure, as well
as the alleged lack of intent on the part of the researcher to not give proper attribution.
The materials for comparison were first identified in the Motion for Reconsideration and in the letter of Dr. Peter B. Payoyo, a Filipino legal
scholar residing in the Netherlands, addressed to the Chief Justice dated 28 October 2010. These excerpts were independently verified, and
compared with the corresponding portions from the original works. In the course of independent verification, we came across three more
unattributed copied works.
TABLES OF COMPARISON
To aid an objective analysis of the extent and manner of the plagiarism committed in the Vinuya Decision, below are tables of comparison that
will compare three written works: (1) the plagiarized work; (2) the Vinuya Decision; and (3) the purported "original" source analyzed or cited by
the concerned authors and by the Vinuya Decision. The left column pertains to the literary works allegedly plagiarized by the legal researcher in
the Vinuya Decision. The middle column refers to the pertinent passage in the Vinuya Decision that makes unattributed use of the copied work.
According to the Majority Resolution, these citations made to original sources (e.g., to the international law cases being referenced to support a
certain point) in the Vinuya Decision are sufficient to refute the charges of non-attribution. To address this claim, I have chosen to add a third
column to present the text of the source referred to in the nearest (location-wise and/or context-wise) citation or attribution made in the Vinuya
Decision. This will allow us to determine whether the analysis, reference and/or collation of original sources were those of the allegedly
plagiarized authors or are Vinuya originals. In addition, this three-column presentation will also allow us to examine the claim being made by
Justice del Castillo that at least two of the authors whose works are allegedly plagiarized in the Vinuya Decision themselves violated academic
scholarship rules against plagiarism.
TABLE A: Comparison of Evan J. Criddle & Evan Fox-Decent's article in the Yale Journal of International Law, entitled A Fiduciary Theory
of Jus Cogens (2009) and the Supreme Court's 28 April 2010 Decision in Vinuya v. Executive Secretary. HDaACI
INTERNATIONAL SOURCE BEING

THE ALLEGEDLYANALYZED BY CRIDDLE AND
PLAGIARIZED WORKTHE DECISIONFOX-DECENT
Evan J. Criddle & EvanVinuya v. Executive
Fox-Decent, A FiduciarySecretary, G.R. No. 162230,
Theory of Jus Cogens, 3428 April 2010.
YALE J. INT'L L. 331
(2009).
1.. . . judges on the Permanent. . . Judges on the Permanent . . . It is an essential principle
Court of InternationalCourt of Internationalof any court, whether
Justice affirmed theJustice affirmed thenational or international,
existence of peremptoryexistence of peremptorythat the judges may only
norms in international lawnorms in international lawrecognize legal rules which
by referencing treatiesby referencing treatiesthey hold to be valid. There
contra bonos morescontra bonos moresis nothing to show that it
(contrary to public policy)(contrary to public policy)was intended to disregard
in a series of individualin a series of individualthat legal principle when
7/6/14, 3:36 PM
concurring and dissentingconcurring and dissentingthis Court was instituted, or

opinions. 10 opinions. (For example, inthat it was to be obliged to
the 1934 Oscar Chinn Case,found its decisions on the
10 For example, in the 1934Judge Schcking'sideas of the parties which
Oscar Chinn Case, Judgeinfluential dissent statedmay be entirely wrong as
Schcking's influentialthat neither an internationalto the law to be applied in a
dissent stated that neither court nor an arbitral tribunalgiven case . . . . The Court
an international court nor should apply a treatywould never, for instance,
an arbitral tribunal shouldprovision in contradiction toapply a convention the
apply a treaty provision inbonos mores. Oscar Chinnterms of which were
contradiction to bonosCase, 1934 P.C.I.J. (ser.contrary to public morality.
mores. Oscar Chinn Case,A/B) No. 63, at 149-50But, in my view, a tribunal
1934 P.C.I.J. (ser. A/B) No.(Dec. 12) (Schcking, J.,finds itself in the same
63, at 149-50 (Dec. 12)dissenting).position if a convention
(Schcking, J., dissenting).adduced by the parties is inreality null and void, owing
to a flaw in its origin. The
attitude of the tribunal
should, in my opinion, be
governed in such a case by
considerations of
international public policy,
even when jurisdiction is
conferred on the Court by
virtue of a Special
Agreement.
Source:
(p. 335 of Criddle and Fox-(p. 31, footnote 71 of The Oscar Chinn Case
Decent)Vinuya)(U.K. v. Belg.), 1934 P.C.I.J.
(ser. A/B) No. 63, at 149-50
(Dec. 12) (separate opinion
of Judge Schcking).
2.While the ICJ recentlyWhile the ICJ recently endorsed64. . . .The Court observes,
endorsed the jus cogensthe jus cogens concept for thehowever, as it has already had
concept for the first time in itsfirst time in its 2006 Judgmentoccasion to emphasize, that
2006 Judgment on Preliminaryon Preliminary Objections in"the erga omnes character of a
Objections in Armed ActivitiesArmed Activities on thenorm and the rule of consen
on the Territory of the Congoterritory of the Congo (Congo v.to jurisdiction are two
(Congo v. Rwanda), it declinedRwanda), it declined to clarifydifferent things". . ., and that
to clarify jus cogens's legaljus cogens's legal status or tothe mere fact that rights and
status or to specify anyspecify any criteria forobligations erga omnes may
criteria for identifyingidentifying peremptory norms.be at issue in a dispute would
peremptory norms. 67 (Armed Activities on thenot give the Court jurisdiction
Territory of the Congo,to entertain that dispute.
67 Armed Activities on theJurisdiction of the Court and
Territory of the Congo,Admissibility of the ApplicationThe same applies to the
Jurisdiction of the Court and(Dem. Rep. Congo v. Rwanda)relationship between
Admissibility of the(Judgment of February 3, 2006),peremptory norms of general
Application (Dem. Rep.at 31-32, available at http://international law (jus cogens)
Congo v. Rwanda) (Judgmentwww.icj-cij.org/docket/files/and the establishment of the
of Feb. 3, 2006), at 31-32,126/10435.pdf.Court's jurisdiction: the fact
available at http://www.icj-cij.that a dispute relates to
org/docket/files/126/10435.compliance with a norm
pdf (last visited Mar. 31, 2009).having such a character, which
is assuredly the case with
regard to the prohibition of
genocide, cannot of itself
provide a basis for the
jurisdiction of the Court to
entertain that dispute. Under
the Court's Statute that
jurisdiction is always based on
the consent of the parties.
Source:
(p. 346, footnote 67 of Criddle(p. 32, footnote 77 of Vinuya)Armed Activities on the
and Fox-Decent)Territory of the Congo (Dem.
Rep. Congo v. Rwanda), 2006
I.C.J. 6, 31-32 (Feb. 3).
3.Similarly, the European Court77 Similarly, the European Court61 While the Court accepts,
7/6/14, 3:36 PM
of Human Rights hasof Human Rights has addressedon the basis of these
addressed jus cogens onlyjus cogens only once, inauthorities, that the prohibition
once, in Al-Adsani v. UnitedAl-Adsani v. United Kingdom,of torture has achieved the
Kingdom, when it famouslywhen it famously rejected thestatus of a peremptory norm in
rejected the argument thatargument that jus cogensinternational law, it observes
jus cogens violations wouldviolations would deprive athat the present case
deprive a state of sovereignstate of sovereign immunity.concerns. . . the immunity of a
immunity. 75 Al-Adsani v. United Kingdom,State in a civil suit for
2001-XI Eur. Ct. H.R. 79, 61)damages in respect of acts of
75 Shelton, supra note 3, at 309torture within the territory of
(discussing Al-Adsani v.that State. Notwithstanding the
United Kingdom, 2001-XI Eur.special character of the
Ct. H.R. 79, 61).prohibition of torture in
international law, the Court is
unable to discern in the
international instruments,
judicial authorities or other
materials before it any firm
basis for concluding that, as a
matter of international law, a
State no longer enjoys
immunity from civil suit in the
courts of another State where
acts of torture are alleged. . . .
Source:
(p. 347 of Criddle and(p. 32, footnote 77 of Vinuya)Al-Adsani v United Kingdom,
Fox-Decent)App. No. 35763/97, 34 Eur.
H.R. Rep. 11, par. 61
(2002)(21 Nov. 2001).
TABLE B: Comparison of Mark Ellis's article entitled Breaking the Silence: Rape as an International Crime (2006-2007) and the Supreme
Court's 28 April 2010 Decision in Vinuya v. Executive Secretary.
THE ALLEGEDLYANALYZED BY ELLIS
COPIED WORKTHE DECISION
Mark Ellis's article entitledVinuya v. Executive Secretary,
Breaking the Silence: Rape asG.R. No. 162230, 28 April 2010.
an International Crime 38
Case W. Res. J. Int'l. L. 225
(2006-2007).
1.A major step in this legal65 . . . A major step in this legal
development came in 1949,development came in 1949,[Article 50/51/147]
when rape and sexual assaultwhen rape and sexual assault
were included in the Genevawere included in the GenevaGrave breaches to which the
Conventions. . . . Rape isConventions. Rape is includedpreceding Article relates shall
included in the following actsin the following acts committedbe those involving any of the
committed against personsagainst persons protected byfollowing acts, if committed
protected by the 1949 Genevathe 1949 Geneva Conventions:against persons. . . protected
Conventions: "wilful killing,"willful killing, torture orby the Convention: willful
torture or inhuman treatment,inhuman treatment, includingkilling, torture or inhuman
including biologicalbiological experiments; willfullytreatment, including biological
experiments; wilfully causingcausing great suffering orexperiments, wilfully causing
great suffering or seriousserious injury to body or health."great suffering or serious
injury to body or health." 65. . . (See Geneva Convention forinjury to body or health. . . .
the Amelioration of the
65 Fourth Geneva Convention,Condition of the Wounded and
supra note 23, art. 147.Sick in Armed Forces in theSource:
Field, art. 3 (1) (c), 75 U.N.T.S.
31; Geneva Convention for the
Amelioration of the ConditionGeneva Convention (I) for the
of Wounded, Sick andAmelioration of the Condition
Shipwrecked Members of Armedof the Wounded and Sick in
Forces at Sea, art. 3 (1) (c), 75Armed Forces in the Field, 75
U.N.T.S. 85; Geneva ConventionU.N.T.S. 31; Geneva
Relative to the Treatment of Convention (II) for the
Prisoners of War, art. 3 (1) (c),Amelioration of the Condition
75 U.N.T.S. 973; Fourth Genevaof Wounded, Sick and
Convention, supra note 23, art.Shipwrecked Members of
3 (1) (c).Armed Forces at Sea, 75
7/6/14, 3:36 PM
U.N.T.S. 85; Geneva

Convention (III) Relative to
the Treatment of Prisoners of
War, 75 U.N.T.S. 973;
Geneva Convention (IV)
(p. 236 of Ellis)(p. 28, footnote 65 of Vinuya)Relative to the Protection of
Civilian Persons in Time of
War, 75 U.N.T.S. 287.
2.Rape as a violation of the laws65 . . . Rape as a violation of theArticle 3
or customs of war generallylaws or customs of war generallyxxx xxx xxx
consists of violations of consists of violations of
Article 3 of the 1949 GenevaArticle 3 of the 1949 Geneva(a) violence to life and person,
Conventions, which, in part,Conventions, which, in part,in particular murder of all
prohibits "violence to life andprohibits "violence to life andkinds, mutilation, cruel
person, in particularperson, in particular mutilation,treatment and torture;
mutilation, cruel treatmentcruel treatment and torture;(b) taking of hostages;
and torture; outrages uponoutrages upon personal dignity,(c) outrages upon personal
personal dignity, in particularin particular humiliating anddignity, in particular
humiliating and degradingdegrading treatment." (Seehumiliating and degrading
treatment." 66Geneva Convention for thetreatment; . . .
Amelioration of the Condition
66 See Geneva Convention forof the Wounded and Sick inSource:
the Amelioration of theArmed Forces in the Field, art.
Condition of the Wounded3 (1) (c), 75 U.N.T.S. 31;Geneva Convention (I) for the
and Sick in Armed Forces inGeneva Convention for theAmelioration of the Condition
the Field, art. 3 (1) (c), 75Amelioration of the Conditionof the Wounded and Sick in
U.N.T.S. 31; Genevaof Wounded, Sick andArmed Forces in the Field, 75
Convention for theShipwrecked Members of U.N.T.S. 31; Geneva
Amelioration of theArmed Forces at Sea, art. 3 (1)Convention (II) for the
Condition of Wounded, Sick(c), 75 U.N.T.S. 85; GenevaAmelioration of the Condition
and Shipwrecked MembersConvention Relative to theof Wounded, Sick and
of Armed Forces at Sea, art.Treatment of Prisoners of War,Shipwrecked Members of
3 (1) (c), 75 U.N.T.S. 85;art. 3 (1) (c), 75 U.N.T.S. 973;Armed Forces at Sea, 75
Geneva Convention RelativeFourth Geneva Convention,U.N.T.S. 85; Geneva
to the Treatment of Prisonerssupra note 23, art. 3 (1) (c).Convention (III) Relative to
of War, art. 3 (1) (c), 75the Treatment of Prisoners of
U.N.T.S. 973; Fourth GenevaWar, 75 U.N.T.S. 973;
Convention, supra note 23,Geneva Convention (IV)
art. 3 (1) (c). . . .Relative to the Protection of
War, 75 U.N.T.S. 287.
(p. 236 of Ellis)(p. 28, footnote 65 of Vinuya)
3.Article 27 of the Fourth65 . . . Article 27 of the FourthArticle 27
Geneva Convention, directedGeneva Convention, directed
at protecting civilians duringat protecting civilians duringWomen shall be especially
time of war, states thattime of war, states thatprotected against any attack on
"women shall be especially"women shall be especiallytheir honour, in particular
protected against any attackprotected against any attack onagainst rape, enforced
on their honour, in particulartheir honour, in particularprostitution, or any form of
against rape, enforcedagainst rape, enforcedindecent assault.
prostitution, or any form of prostitution, or any form of
indecent assault." 67indecent assault."Source:
67Fourth Geneva Convention,Geneva Convention (IV)
supra note 23, art. 27.Relative to the Protection of
War, 75 U.N.T.S. 287.
(pp. 236 of Ellis)(p. 28, footnote 65 of Vinuya)
4.Protocol I of the Geneva65 . . .Protocol I of the GenevaArticle 76. Protection of
Conventions continues toConventions continues towomen
expand the protected rights byexpand the protected rights by
providing that "women shallproviding that "women shall1. Women shall be the object
be the object of specialbe the object of special respectof special respect and shall be
respect and shall be protectedand shall be protected inprotected in particular against
in particular against rape,particular against rape, forcedrape, forced prostitution and
forced prostitution and anyprostitution and any form of any other form of indecent
form of indecent assault." 68indecent assault." (Protocolassault.
Additional to the Geneva
68 Protocol Additional to theConventions of August 12,Source:
7/6/14, 3:36 PM
Geneva Conventions of 121949, and Relating to the

August 1949, and Relating toProtection of Victims of Protocol Additional to the
the Protection of Victims of International ArmedGeneva Conventions of 12
International Armed ConflictsConflicts (Protocol I), ArticleAugust 1949, and relating to
(Protocol I), Article 76 (1),76 (1), 1125 U.N.T.S. 4).the Protection of Victims of
1125 U.N.T.S. 4.International Armed Conflicts
(Protocol I), 1125 U.N.T.S. 3.
(pp. 236-237 of Ellis)(p. 28, footnote 65 of Vinuya)
TABLE C: Comparison of Robert McCorquodale's work, entitled The Individual and the International Legal System, 4 and Phoebe Okowa's
work, entitled Issues of Admissibility and the Law on International Responsibility, 5 both of which were published in Malcolm Evans's book
(International Law), and the Supreme Court's Decision in Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010.
EICDSA

THE ALLEGEDLYANALYZED AND USED
COPIED WORKTHE DECISIONBY MCCORQUODALE/
OKOWA
Essays published inVinuya v. Executive Secretary,
MALCOLM EVANS,G.R. No. 162230, 28 April 2010.
INTERNATIONAL LAW
(ed., 2006).
1.Traditionally, the only means. . . traditionally, the only meansNote:
available for individuals toavailable for individuals to bring
bring a claim within thea claim within the internationalPage 231 of the Appeal from a
international legal system haslegal system has been when theJudgment of the Hungaro-
been when the individual isindividual is able to persuade aCzechoslovak Mixed Arbitral
able to persuade a governmentgovernment to bring a claimTribunal case the citation
to bring a claim on theon the individual's behalf. 55nearest in location and in
individual's behalf. Even then,Even then, it is not thecontext to the passage does
it is not the individual'sindividual's rights that arenot contain a discussion on
international rights that arebeing asserted, but rather, the"persuad[ing] a government to
being asserted but thestate's own rights.bring a claim on the
State's own rights. . . .individual's behalf."
55 . . . Appeal from a JudgmentThe reference to Appeal from
of the Hungaro/Czeochoslovaka Judgment of the Hungaro-
Mixed Arbitral Tribunal,Czechoslovak Mixed Arbitral
Judgment, 1933, PCIJ, Ser.Tribunal case occurs in
A/B No. 61, p. 208 at 231.McCorquodale as footnote 14,
four sentences before the
passage copied by Vinuya,
and is made following the
quote, 'it is scarcely necessary
(pp. 315-16 of Evans's(p. 24, Body of Vinuya)to point out that the capacity
International Law book, essayto possess civil rights does not
written by McCorquodale)necessarily imply the capacity
to exercise those rights
oneself'.
In McCorquodale, the citation
following the discussion on
how "it is not the individual's
international rights that are
being asserted but the State's
own rights" is written thus in
footnote 16: 16 Panevezeys-
Saldutiskis Railway,
Judgment, PCIJ, Ser A/B, No.
76, p. 4. Cf LaGrand
(Germany v United States of
America), Merits, Judgment,
ICJ Reports 2001, p. 466, para
42.
2.The conceptual understanding55 The conceptual understanding
that individuals have rights andthat individuals have rights and
responsibilities in theresponsibilities in the
international legal system doesinternational arena does not
not automatically mean thatautomatically mean that they
they have the ability to bringhave the ability to bring
international claims to assertinternational claims to assert their
their rights or are able to claimrights. Thus, the Permanent
7/6/14, 3:36 PM
an immunity to prevent theirCourt of International Justice

responsibilities being enforceddeclared that "it is scarcelyAgain, it is scarcely necessary
(Hohfeld, above). Thus thenecessary to point out that theto point out that the capacity
PCIJ declared that 'it iscapacity to possess civil rightsto possess civil rights does not
scarcely necessary to pointdoes not necessarily imply thenecessarily imply the capacity
out that the capacity to possesscapacity to exercise those rightsto exercise those rights
civil rights does not necessarilyoneself." Appeal from aoneself. No argument against
imply the capacity to exerciseJudgment of the Hungaro/the University's personality in
those rights oneself'. 14Czeochoslovak Mixed Arbitrallaw can therefore be deduced
Tribunal, Judgment, 1933, PCIJ,from the fact that it did not
14 Appeal from a Judgment of Ser. A/B No. 61, p. 208 at 231.enjoy the free disposal of the
the Hungaro/Czechoslovakproperty in question. . . .
Mixed Arbitral Tribunal,
Judgment, 1933, PCIJ, SerSource:
A/B, No. 61, p. 208 at p. 231
Appeal from a Judgment of
the Hungaro-Czechoslovak
Mixed Arbitral Tribunal
(p. 315 of Evans's(p. 24, footnote 55 of Vinuya)(Peter Pzmny University v.
International Law book, essayCzechoslovakia), 1933
written by McCorquodale)P.C.I.J. 208, (ser. A/B) No.
61, at 231 (Dec. 15).
3.The decisions of nationalEven decisions of national courts
courts on these constitutionalsupport the thesis that general
provisions neverthelessinternational law as it stands
support the thesis that generaldoes not mandate an
international law as it standsenforceable legal duty of
does not mandate andiplomatic protection.
enforceable legal duty of
diplomatic protection. 17
17Kaunda and others v.
President of the Republic of
South Africa and others, Case
CCCT23/04. In the Hess
Decision BverfGE, 55, 349, 90
ILR 386, the German Federal
Constitutional Court upheld
the existence of a federal
constitutional right to
diplomatic protection butNote:
denied that it was required by
customary international law.In Okowa's essay, this
See also Abbasi v Sec of statement follows a paragraph
Foreign and Commonwealthin which she discusses
Affairs and Sec of HomeKaunda in the context of
Office [2002] EWCA Civdiscretionary diplomatic
1598, 6 November 2002.protection. Thus, for the
pertinent passages of Kaunda
please see entry 5 of this table.
(p. 484 of Evans's(p. 26, footnote 63 of Vinuya)
International Law book, essay
written by Okowa)
4.This position was been63 . . . has been challenged in the1. Feroz Ali Abbasi, the first
challenged in the UK in a caseUK in a case arising from theclaimant, is a British
arising from the clearlyunlawful detention by the US of national. . . . They seek, by
internationally unlawfulprisoners in Guantanamo Bayjudicial review, to compel the
detention by the US of from the time of theForeign Office to make
prisoners in Guantanamo BayAfghanistan conflict in 2001.representations on his behalf
from the time of theIn Abbasi v Secretary of Stateto the United States
Afghanistan conflict in 2001.for Foreign and CommonwealthGovernment or to take other
In Abassi v Secretary of StateAffairs ([2002] EWCA Civ 1316,appropriate action or at least
for Foreign and19 September 2002) theto give an explanation as to
Commonwealth Affairs 19 theapplicant (a British national)why this has not been done.
applicant (a British national)sought judicial review of the
sought judicial review of theadequacy of the diplomaticxxx xxx xxx
adequacy of the diplomaticactions of the British government
actions of the Britishwith the US government. . . .107. . . .On no view would it
government with the USbe appropriate to order the
government. . . .Secretary of State to make any
7/6/14, 3:36 PM
specific representations to the

United States, even in the face
of what appears to be a clear
breach of a fundamental
(p. 316 of Evans's(p. 26, footnote 63 of Vinuya)human right, as it is obvious
International Law book, essaythat this would have an impact
written by McCorquodale)on the conduct of foreign
policy. . . .
Source:
Abbasi v. Secretary of State
for Foreign and
Commonwealth Affairs, 42
I.L.M. 358, 359-383
(2003)(Nov. 6)(U.K.).
5.The South African63 . . .The South African[65] The founding values of
Constitutional Court inConstitutional Court in Kaundaour Constitution include
Kaunda and others v.and others v. President of thehuman dignity, equality and
President of the Republic of Republic of South Africa andthe advancement of human
South Africa and others 16others (Case CCCT23/04)rights and freedoms. . . .
recognized the constitutionalrecognized the constitutional
basis of the right of diplomaticbasis of the right of diplomaticxxx xxx xxx
protection as enshrined in theprotection as enshrined in the
South African constitution,South African Constitution, but[69] There may thus be a duty
but went on to hold that thewent on to hold that the natureon government, consistent
nature and extent of hisand extent of this obligationwith its obligations under
obligation was an aspect of was an aspect of foreign policyinternational law, to take
foreign policy within thewithin the discretion of theaction to protect one of its
discretion of the executive.executive.citizens against a gross abuse
of international human rights
norms. . . .
xxx xxx xxx
16Kaunda and others v.[73] A court cannot tell the
President of the Republic of government how to make
South Africa and others,diplomatic interventions for
Case CCCT23/04.the protection of its
nationals. . . .
xxx xxx xxx
[77] A decision as to whether,
and if so, what protection
should be given, is an aspect
of foreign policy which is
essentially the function of the
executive. The timing of
representations if they are to
be made, the language in
which they should be couched,
and the sanctions (if any)
which should follow if such
representations are rejected are
matters with which courts are
ill equipped to deal. . . .
Source:
(p. 484 of Evans's(p. 27, footnote 63 of Vinuya)Kaunda v. President of the
International Law book,Republic of South Africa, 44
essay written by Okowa)I.L.M. 173, pars. 65-77 (2005)
(C. Ct. S. Afr.).
TABLE D: Comparison of Mariana Salazar Albornoz's article, Legal Nature and Legal Consequences of Diplomatic Protection:
Contemporary Challenges, and the Supreme Court's Decision in Vinuya, et al. v. Executive Secretary, G.R. No. 162230, 28 April 2010.
THE PURPORTED "ORIGINAL"

THE ALLEGEDLYSOURCE CITED BY THE CONCERNED
COPIED WORKTHE DECISIONAUTHORS AND IN THE VINUYA
DECISION
Mariana Salazar Albornoz,Vinuya v. Executive Secretary,
Legal Nature and Legal G.R. No. 162230, 28 April 2010.
7/6/14, 3:36 PM
Consequences of Diplomatic
Protection: Contemporary
Challenges, 6 ANUARIO
MEXICANO DE DERECHO
INTERNACIONAL 377 (2006)
1.Nowhere is this position moreNowhere is this position more
clearly reflected than in theclearly reflected than in the
dictum of the Permanent Courtdictum of the Permanent Court
of International Justice (PCIJ)of International Justice (PCIJ)
in the 1924 Mavrommatisin the 1924 Mavrommatis
Palestine Concessions Case:Palestine Concessions Case:
By taking up the case of By taking up the case of oneBy taking up the case of one
one of its subjects and byof its subjects and byof its subjects and by resorting
resorting to diplomaticresorting to diplomatic actionto diplomatic action or
action or internationalor international judicialinternational judicial
judicial proceedings on hisproceedings on his behalf, aproceedings on his behalf, a
behalf, a State is in realityState is in reality assertingState is in reality asserting its
asserting its own right toits own right to ensure, inown right to ensure, in the
ensure, in the person of the person of its subjects,person of its subjects, respect
its subjects, respect for therespect for the rules of for the rules of international
rules of international law.international law. Thelaw.
The question, therefore,question, therefore, whether
whether the presentthe present disputeThe question, therefore,
dispute originates in anoriginates in an injury to awhether the present dispute
injury to a private interest,private interest, which inoriginates in an injury to a
which in point of fact, ispoint of fact, is the case inprivate interest, which in point
the case in manymany international disputes,of fact, is the case in many
international disputes, isis irrelevant from thisinternational disputes, is
irrelevant from thisstandpoint. Once a State hasirrelevant from this standpoint.
standpoint. Once a Statetaken up a case on behalf of Once a State has taken up a
has taken up a case onone of its subjects beforecase on behalf of one of its
behalf of one of itsan international tribunal, insubjects before an
subjects before anthe eyes of the latter theinternational tribunal, in the
international tribunal, inState is sole claimant. 56eyes of the latter the State is
the eyes of the latter thesole claimant. The fact that
State is sole claimant. 85Great Britain and Greece are
the opposing Parties to the
dispute arising out of the
Mavrommatis concessions is
sufficient to make it a dispute
between two States within the
meaning of Article 26 of the
Palestine Mandate.
Source:
85 Mavrommatis Palestine56 PCIJ, Ser. A, No. 2, p. 11, atMavrommatis Palestine
Concessions case, supra note16. This traditional view wasConcessions (Greece v. Gr.
9, p. 12. The emphasis is ours.repeated by the PCIJ in theBrit.), 1924 P.C.I.J. (ser. A)
This traditional view wasPanevezys-Saldutiskis RailwayNo. 2, at 12 (Aug. 30).
repeated by the PCIJ in theCase, the Case Concerning the
Panevezys-SaldutiskisPayment of Various Serbian
Railway Case, the CaseLoans issued in France,
Concerning the Payment of Judgment of July 12, 1929, PCIJ
Various Serbian Loans issuedReports, Series A No. 20; and in
in France, Judgment of Julythe Case Concerning the
12, 1929, PCIJ Reports, SeriesFactory at Chorzow, Judgment
A No. 20; and in the Caseof September 13, 1928, Merits,
Concerning the Factory atPCIJ Reports, Series A No. 17.
Chorzow, Judgment of The ICJ has adopted it in the
September 13, 1928, Merits,Reparation for injuries suffered
PCIJ Reports, Series A No. 17.in the service of the United
The ICJ has adopted it in theNations Advisory Opinion: ICJ
Reparation for injuriesReports 1949, p. 174; the
suffered in the service of theNottebohm Case (second phase)
United Nations AdvisoryJudgment of April 6th, 1955:
Opinion: ICJ Reports 1949, p.ICJ Reports 1955, p. 4 at p. 24;
174; the Nottebohm Casethe Interhandel Case
(second phase) Judgment of (Judgment of March 21st, 1959:
April 6th, 1955: ICJ ReportsICJ Reports 1959, p. 6 at p. 27)
1955, p. 4 at p. 24; theand the Barcelona Traction
7/6/14, 3:36 PM
Interhandel Case (JudgmentLight and Power Company

of March 21st, 1959: ICJLimited case, (Belg. V.
Reports 1959, p. 6 at p. 27)Spain), 1970 I.C.J. 3, 32
and the Barcelona Traction(Feb. 5).
Light and Power Company,
Limited case, supra note 6,
at p. 32 par. 33. It has also
been recognized by other
international tribunals: see,(p. 24 Body of Vinuya)
for example, Administrative
Decision No. V of the US-
German Claims Commission.
(p. 397 of Albornoz)
2.Under this view, the57 See BORCHARD, E.,. . . The citizen abroad has no
considerations underlying theDIPLOMATIC PROTECTIONlegal right to require the
decision to exercise or notOF CITIZENS ABROAD AT VIdiplomatic protection of his
diplomatic protection may(1915). Under this view, thenational government. Resort to
vary depending on each caseconsiderations underlying thethis remedy of diplomatic
and may rely entirely on policydecision to exercise or notprotection is solely a right of
considerations regardless of diplomatic protection may varythe government, the
the interests of the directly-depending on each case andjustification and expediency of
injured individual, and themay rely entirely on policyits employment being a matter
State is not required toconsiderations regardless of thefor the government's
provide justification for itsinterests of the directly-injuredunrestricted discretion. This
decision. 90individual, and the State is notprotection is subject in its
required to provide justificationgrant to such rules of
90 See in this sense, Borchardfor its decision.municipal administrative law
E., Diplomatic Protection of as the state may adopt, and in
Citizens Abroad, New York,its exercise internationally to
The Banks Law Publishingcertain rules which custom has
Co., 1915, at VI. Also: G.recognized.
Berlia, op. cit. (note 86), pp.
63 y 64.
(p. 398 of Albornoz)(p. 25, footnote 57 of Vinuya)
Source:
EDWIN M. BORCHARD,
THE DIPLOMATIC
PROTECTION OF CITIZENS
ABROAD OR THE LAW OF
INTERNATIONAL CLAIMS,
VI (1914).
3.The ILC's First Reading DraftThe International Law60. The texts of the draft
Articles on diplomaticCommission's (ILC's) Draftarticles on diplomatic
protection have fully attachedArticles on Diplomatic Protectionprotection with commentaries
to the traditional view on thefully support this traditionalthereto adopted on first
legal nature of such institution.view. They (i) state that "thereading by the Commission at
In this sense, (i) they expresslyright of diplomatic protectionits fifty-sixth session, are
state that "the right of belongs to or vests in the State,"reproduced below.
diplomatic protection belongs59 (ii) affirm its discretionary
to or vests in the State", anature by clarifying thatxxx xxx xxx
statement which "givesdiplomatic protection is a
recognition to the Vattelian"sovereign prerogative" of theArticle 2 stresses that the right
notion that an injury to aState; 60 and (iii) stress thatof diplomatic protection
national is an indirect injury tothe state "has the right tobelongs to or vests in the
the State"; 96 (ii) they affirmexercise diplomatic protectionState. It gives recognition to
its discretionary nature byon behalf of a national. It isthe Vattelian notion that an
clarifying that diplomaticunder no duty or obligationinjury to a national is an
protection is a "sovereignto do so." 61indirect injury to the
prerogative" of the State; 59 . . .
and stressing that the state "
has the right to exercisexxx xxx xxx
diplomatic protection on
behalf of a national. It isA State has the right to
under no duty or obligationexercise diplomatic protection
to do so." 98on behalf of a national. It is
under no duty or obligation to
do so. The internal law of a
State may oblige a State to
7/6/14, 3:36 PM
extend diplomatic protection

to a national, 29 but
international law imposes no
such obligation. . . .
Source:
96 ILC First Reading Draft59 ILC First Reading DraftText of the Draft Articles on
Articles on DiplomaticArticles on DiplomaticDiplomatic Protection
Protection, supra note 13,Protection, U.N. Doc.Adopted by the Commission
par. 60, Commentary to DraftA/CN.4/484, ILC Report,on First Reading, Rep. of the
Article 2, par. (1); see also,A/53/10 (F), par. 60,Int'l. Law Comm'n, 56th Sess.,
Commentary to Draft ArticleCommentary to Draft Article 2,3 May-4 June and 5 July-6
1, par. (3), and text of Draftpar. (1); see also, CommentaryAugust 2004, U.N. Doc.
Article 2.to Draft Article 1, par. (3), andA/59/10 at 22-28, par. 60;
text of Draft Article 2.GAOR, 59th Sess., Supp. 10
(2004).
97 Report of the International60 Report of the International
Law Commission on the workLaw Commission on the work
of its 50th session, supra noteof its 50th session, supra note
13, par. 77.60, par. 77.
98 ILC First Reading Draft61 ILC First Reading Draft
Articles on DiplomaticArticles on Diplomatic
Protection, supra note 2,Protection, supra note 60,
commentary to Draft Articlecommentary to Draft Article 2,
2, par. (2).par. (2).
(p. 400 of Albornoz)(p. 25-26 Body of Vinuya)
4.. . . Special Rapporteur Dugard62 . . . Special Rapporteur Dugard74. The discretionary power of
proposed that the ILC adopt inproposed that the ILC adopt inthe State to intervene on
its Draft Articles a provisionits Draft Articles a provisionbehalf of its national is
under which States would beunder which States would beconsidered in the commentary
internationally obliged tointernationally obliged toon article 4.
exercise diplomatic protectionexercise diplomatic protection
in favour of their nationalsin favor of their nationals injuredArticle 4
injured abroad by graveabroad by grave breaches to1. Unless the injured person is
breaches to their jus cogens jus cogens norms, if theable to bring a claim for such
norms, if the national sonational so requested and if injury before a competent
requested and if he/she washe/she was not afforded directinternational court or tribunal,
not afforded direct access toaccess to an internationalthe State of his/her nationality
an international tribunal. 116tribunal. The proposed articlehas a legal duty to exercise
reads as follows:diplomatic protection on
116 The proposed article readbehalf of the injured person
as follows: "Article [4] 1.Article [4] 1. Unless theupon request, if the injury
Unless the injured person isinjured person is able toresults from a grave breach of
able to bring a claim for suchbring a claim for such injurya jus cogens norm attributable
injury before a competentbefore a competentto another State.
international court or tribunal,international court or2. The State of nationality is
the State of his/her nationalitytribunal, the State of his/herrelieved of this obligation if:
has a legal duty to exercisenationality has a legal duty(a) The exercise of diplomatic
diplomatic protection onto exercise diplomaticprotection would seriously
behalf of the injured personprotection on behalf of theendanger the overriding
upon request, if the injuryinjured person uponinterests of the State and/or its
results from a grave breach of request, if the injury resultspeople;
a jus cogens norm attributablefrom a grave breach of a(b) Another State exercises
to another State. 2. The statejus cogens norm attributablediplomatic protection on
of nationality is relieved of thisto another State. 2. Thebehalf of the injured person;
obligation if: (a) The exercisestate of nationality is relieved(c) The injured person does
of diplomatic protection wouldof this obligation if: (a) Thenot have the effective and
seriously endanger theexercise of diplomaticdominant nationality of the
overriding interests of the Stateprotection would seriouslyState.
and/or its people ; (b) Anotherendanger the overriding3. States are obliged to
State exercises diplomaticinterests of the State and/orprovide in their municipal law
protection on behalf of theits people ; (b) Anotherfor the enforcement of this
injured person; (c) The injuredState exercises diplomaticright before a competent
person does not have theprotection on behalf of thedomestic court or other
effective and dominantinjured person; (c) Theindependent national
nationality of the State. Statesinjured person does notauthority.
are obliged to provide in theirhave the effective and
municipal law for thedominant nationality of the
enforcement of this rightState. States are obliged to
7/6/14, 3:36 PM
before a competent domesticprovide in their municipal

court or other independentlaw for the enforcement of
national authority." Dugard, J.this right before a competent
First report on diplomaticdomestic court or other
protection, supra note 13, par.independent national
74.authority." Special
Rapporteur John Dugard,
appointed in 1999, First
Report on Diplomatic
Protection, par. 74 (UN Doc
A/CN.4/506 (March 7, 2000)
and Corr. 1 (June 7, 2000)
and Add. 1 (April 20, 2000).Source:
(p. 404 of Albornoz)(p. 26, footnote 62 of Vinuya)Special Rapporteur on
Diplomatic Protection, First
Rep. on Diplomatic
Protection, Int'l. Law Comm'n,
UN Doc. A/CN.4/506, at 27,
par. 74 (7 March 2000) (by
John R. Dugard).
5.. . . the proposal was not62 the proposal was not456. The Special Rapporteur
accepted by the ILC, as "theaccepted by the ILC, as "therecognized that he had
question was still not ripe forquestion was still not ripe forintroduced article 4 de lege
treatment" because "the Statetreatment" because "the Stateferenda. As already indicated,
practice and their opinio jurispractice and their opinio juristhe proposal enjoyed the
still hadn't evolved in suchstill hadn't evolved in suchsupport of certain writers, as
direction." 120direction." Official Records of well as of some members of
the General Assembly: 55ththe Sixth Committee and of
120 Official Records of thesession, Supplement No. 10,ILA; it even formed part of
General Assembly: 55thDoc. A/55/10 (2000), Reportsome constitutions. It was thus
session, Supplement No. 10,of the ILC on the work of itsan exercise in the progressive
Doc. A/55/10 (2000), Report52nd session, p. 131.development of international
of the ILC on the work of itslaw. But the general view was
52nd session, p. 131.that the issue was not yet ripe
for the attention of the
Commission and that there
was a need for more State
practice and, particularly,
more opinio juris before it
could be considered.
Note:
p. 131 of the Report does not
refer to the topic of diplomatic
protection. Rather, the heading
of the page reads "Other
Decisions and Conclusions of
the Commission."
(p. 405 of Albornoz)(p. 26, footnote 62 of Vinuya)Source:
Rep. of the Int'l. Law
Comm'n, 52nd Sess., 1 May-9
June and 10 July-18 August
2000, U.N. Doc. A/55/10 at
78-79, par. 456; GAOR, 55th
Sess., Supp. 10 (2000).
6.. . . some States have, indeed,62 . . . some States have, indeed,80. . . . Constitutional
incorporated in theirincorporated in their municipalprovisions in a number of
municipal law a duty tolaw a duty to exerciseStates. . . recognize the right
exercise diplomatic protectiondiplomatic protection in favorof the individual to receive
in favor of their nationals. . . .of their nationals. (Dugarddiplomatic protection for
Various other States have alsoidentifies this "obligation toinjuries suffered abroad. These
included such a "duty toexist in the Constitutions of include: Albania, Belarus,
exercise diplomatic protection"Albania, Belarus, Bosnia andBosnia and Herzegovina,
under their domestic laws, 130Herzegovina, Bulgaria,Bulgaria, Cambodia, China,
but their enforceability is also,Cambodia, China, Croatia,Croatia, Estonia, Georgia,
to say the least, questionableEstonia, Georgia, Guyana,Guyana, Hungary, Italy,
(in many cases there are notHungary, Italy, Kazakhstan, LaoKazakhstan, Lao People's
even courts competent toPeople's Democratic Republic,Democratic Republic, Latvia,
review the decision).Latvia, Lithuania, Poland,Lithuania, Poland, Portugal,
7/6/14, 3:36 PM
Portugal, Republic of Korea,Republic of Korea, Romania,

Romania, Russian Federation,Russian Federation, Spain, the
Spain, the former Yugoslavformer Yugoslav Republic of
Republic of Macedonia,Macedonia, Turkey, Ukraine,
Turkey, Ukraine, Viet NamViet Nam and Yugoslavia. . . .
and Yugoslavia, albeit with
different reaches. J. Dugard,
First Report on diplomatic
protection, supra note 13,Source:
par. 80.)
130 Dugard identifies thisSpecial Rapporteur on
"obligation to exist in theDiplomatic Protection, First
Constitutions of Albania,Rep. on Diplomatic
Belarus, Bosnia andProtection, Int'l. Law Comm'n,
Herzegovina, Bulgaria,UN Doc. A/CN.4/506, at 30,
Cambodia, China, Croatia,par. 80 (7 March 2000) (by
Estonia, Georgia, Guyana,John R. Dugard).
Hungary, Italy, Kazakhstan,
Lao People's Democratic
Republic, Latvia, Lithuania,
Poland, Portugal, Republic of
Korea, Romania, Russian
Federation, Spain, the former
Yugoslav Republic of
Macedonia, Turkey, Ukraine,(p. 26, footnote 62 of Vinuya)
Viet Nam and Yugoslavia,
albeit with different reaches.
J. Dugard, First Report on
diplomatic protection, supra
note 13, par. 80.
(p. 406 of Albornoz)
7.. . . but their enforceability is62 . . ., but their enforceability(2) A State has the right to
also, to say the least,is also, to say the least,exercise diplomatic protection
questionable (in many casesquestionable (in many caseson behalf of a national. It is
there are not even courtsthere are not even courtsunder no duty or obligation to
competent to review thecompetent to review thedo so. The internal law of a
decision). Moreover, theirdecision). Moreover, theirState may oblige a State to
existence in no way impliesexistence in no way implies thatextend diplomatic protection
that international lawinternational law imposes suchto a national, 29 but
imposes such an obligation,an obligation, simply suggestinginternational law imposes no
131 simply suggesting "that"that certain States considersuch obligation. The position
certain States considerdiplomatic protection for theirwas clearly stated by the
diplomatic protection fornationals abroad to be desirable"International Court of Justice
their nationals abroad to be(ILC First Reading Draftin the Barcelona Traction
desirable." 132Articles on Diplomaticcase:
Protection, supra note 2,
Commentary to Draft Articlexxx xxx xxx
2, par (2)).
A proposal that a limited duty
of protection be imposed on
the State of nationality was
rejected by the Commission as
going beyond the permissible
limits of progressive
development of the law. 31
131ILC First Reading DraftSource:
Articles on Diplomatic
Protection, supra note 2,Commentary to the Text of the
Commentary to Draft Article 2,Draft Articles on Diplomatic
par (2). This was recognizedProtection Adopted by the
expressly in the BarcelonaCommission on First Reading,
Traction case, supra note 6.Rep. of the Int'l. Law
Comm'n, 56th Sess., 3 May-4
June and 5 July-6 August
2004, U.N. Doc. A/59/10 at
28, par. 60; GAOR, 59th
Sess., Supp. 10 (2004).
132 Dugard, J. First report on
7/6/14, 3:36 PM
diplomatic protection, supra

note 13, par. 81. . . .
(pp. 406-407 of Albornoz)(p. 26, footnote 62 of Vinuya)
TABLE E: Comparison of Elizabeth Prochaska's article, Testing the Limits of Diplomatic Protection: Khadr v. The Prime Minister of
Canada, 6 and the Supreme Court's Decision in Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010.
TSaEcH

THE ALLEGEDLYANALYZED BY
COPIED WORKTHE DECISIONPROCHASKA
Elizabeth Prochaska, TestingVinuya v. Executive Secretary,
the Limits of DiplomaticG.R. No. 162230, 28 April 2010.
Protection: Khadr v. The
Prime Minister of Canada
(2009).
62 . . . Official Records of the
General Assembly: 55th
session, Supplement No. 10,
Doc. A/55/10 (2000), Report
Instead, Draft Article 19,of the ILC on the work of its
entitled 'Recommended52nd session, p. 131. Instead,
Practice,' suggests that statesDraft Article 19, entitled
should be encouraged to'Recommended Practice,'
exercise diplomatic protectionsuggests that states should be
'especially when significantencouraged to exercise
injury occurred to thediplomatic protection
national. Drafted in soft'especially when significant
language, the Article doesinjury occurred to the national.
not purport to create anyDrafted in soft language, the
binding obligations on theArticle does not purport to
state.create any binding obligations
on the state.
(p. 397 of Prochaska)(Footnote 62 of Vinuya)Note:
The Report of the
International Law Commission
on the Work of its Fifty-
Second Session, and the
Special Rapporteur's First on
Diplomatic Protection, which
are the nearest in location and
in context to the passage, does
not contain a discussion on
Draft Article 19. See pp. 72-
85 and 27-34 respectively.
TABLE F: Comparison of Larry Niksch's Report, Japanese Military's Comfort Women, 10 April 2006, 7 and the Supreme Court's Decision in
Vinuya, et al. v. Executive Secretary, G.R. No. 162230, 28 April 2010.
SOURCE BEING
THE ALLEGEDLYUSED BY
COPIED WORKTHE DECISIONNIKSCH
Larry Niksch, JapaneseVinuya v. Executive Secretary,
Military's Comfort Women,G.R. No. 162230, 28 April 2010.
10 April 2006.
1.The Asian Women's FundThe AWF announced threeThe projects of atonement
announced three programs forprograms for former comfortinvolved providing former
former comfort women whowomen who applied forcomfort women with 2 million
applied for assistance: (1) anassistance: (1) an atonement fundyen per person as atonement
atonement fund that paid twopaying 2 millionmoney donated by Japanese
million yen (approximately(approximately $20,000) to eachcitizens, delivering a letter of
$20,000) to each formerwoman; (2) medical and welfareapology from the Japanese
comfort woman; (2) medicalsupport programs, paying 2.5-3Prime Minister, and offering
and welfare support programsmillion ($25,000-$30,000) forgoods and services under
for former comfort women,each woman; and (3) a letter of medical and welfare support
paying 2.5-3 million yenapology from the Japaneseprojects financed by the
($25,000-$30,000) for eachPrime Minister to eachJapanese government.
former comfort woman; andwoman.
(3) a letter of apology from the
Japanese Prime Minister toNote:
each recipient woman.[8]
7/6/14, 3:36 PM
The passage in Vinuya does

not contain a footnote. The
following source is the nearest
citation that may reasonably
be taken as within the context
of the discussion in Vinuya.
http://web.archive.org/web/
20060301213211/
http://www.awf.or.jp/english/
project_atonement.html
[FN8]. From the Asian
Women's Fund website,
March 16, 2006.
(paragraph 11 of Niksch)(p. 17, Body of Vinuya)
2.. . . As of March 2006, the. . . As of March 2006, the AWFIn order to fulfill its moral
Asian Women's Fundprovided 700 million yenresponsibility in all sincerity,
provided 700 million yen(approximately $7 million) forthe Japanese government
(approximately $7 million) forthese programs in South Korea,decided to disburse about 700
these programs in SouthTaiwan, and the Philippines;million yen over a five-year
Korea, Taiwan, and the380 million yen (approximatelyperiod for medical and welfare
Philippines; 380 million yen$3.8 million) in Indonesia; andsupport projects aiding former
(approximately $3.8 million)242 million yencomfort women in the
in Indonesia; and 242 million(approximately $2.4 million) inPhilippines, the Republic of
yen (approximately $2.4the Netherlands.Korea and Taiwan.
million) in the Netherlands. [9]
xxx xxx xxx
(paragraph 12 of Niksch)(p. 17, Body of Vinuya)Note:
20060301213211/http://
www.awf.or.jp/english/
3.On January 15, 1997 the AsianOn January 15, 1997 the AWFThe government of the
Women's Fund and theand the Philippine governmentPhilippines and the Asian
Philippine government signedsigned a Memorandum of Women's Fund signed a
a Memorandum of Understanding for medical andMemorandum of
understanding for medical andwelfare support programs forUnderstanding on January 15,
welfare support programs forformer comfort women. Over1997. . . .
former comfort women. Overthe next five years, these were
the next five years, these wereimplemented by the DepartmentThe Philippine government's
implemented by theof Social Welfare andDepartment of Social Welfare
Philippine government'sDevelopment.and Development
Department of Socialimplemented the projects over
Welfare and Development.a period of five years. . . .
(paragraph 19 of Niksch)(p. 17, Body of Vinuya)Note:
20060301213211/http://
www.awf.or.jp/english/
TABLE G: Comparison of James Ladino's article, Ianfu: No Comfort Yet for Korean Comfort Women and the Impact of House Resolution
121 and the Supreme Court's Decision in Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010.
SOURCE BEING
THE ALLEGEDLYANALYZED AND/OR USED
7/6/14, 3:36 PM
COPIED WORKTHE DECISIONBY LADING

James Ladino, Ianfu: NoVinuya v. Executive Secretary,
Comfort Yet for KoreanG.R. No. 162230, 28 April 2010.
Comfort Women and the
Impact of House Resolution
121, 15 CARDOZO J.L. &
GENDER 333 (2009).
1.In 1992, the Korean CouncilIn 1992, the Korean Council for. . . In her report to the U.N.
for the Women Drafted forthe Women Drafted for MilitaryHuman Rights Commission,
Military Sexual Slavery bySexual Slavery by JapanRadhika Coomaraswamy, the
Japan ("KCWS"), submitted a(KCWS), submitted a petitionU.N. special investigator into
petition to the United Nationsto the UN Human Rightsviolence against women,
Human Rights CommissionCommission (UNHRC), askingconcluded that Japan must
("UNHRC"), asking for theirfor assistance in investigatingadmit its legal
assistance in investigatingcrimes committed by Japanresponsibility. . . .
crimes committed by Japanagainst Korean women and
against Korean women andseeking reparations for formerxxx xxx xxx
pressuring Japan to paycomfort women. 29 The
reparations to the women whoUNHRC placed the issue on its. . . Lee Hyo-chae, as a co-
had filed lawsuits. 96 Theagenda and appointed Radhikachair of the KCWS submitted
UNHRC formally placed theCoomaraswamy as the issue'sa petition to the U.N. Human
issue on its agenda andspecial investigator. In 1996,Rights Commission, dated
appointed RadhikaCoomaraswamy issued aMarch 4, 1992, requesting that
Coomaraswamy as theReport reaffirming Japan'sthe Commission investigate
issue's special investigator. 97responsibility in forcing KoreanJapanese atrocities committed
Issued in 1996, the UNHRC'swomen to act as sex slaves foragainst Korean women during
report reaffirmed Japan's guiltthe imperial army, and madeWorld War Two, and help
in forcing Korean women tothe following recommendations:pressure the Japanese
act as sex slaves for thegovernment to pay reparations
imperial army. 98to individual women who have
filed suit. The UNHRC
responded by placing the issue
on the official agenda for its
August 1992 meeting in
Geneva. . . .
96Soh, supra note 729 SOH, THE COMFORT
[Chunghee Sarah Soh, TheWOMEN PROJECT, SAN
Korean "Comfort Women":FRANCISCO STATE
Movement for Redress, 36UNIVERSITY (1997-2001),
Asian Survey 1226,], athttp://online.sfsu.edu/~soh/c
1234-35.comfortwomen.html, at
1234-35.
97 Id. at 1226.Source:
Chunghee Sarah Soh, The
98 Id.Korean "Comfort Women":
Movement for Redress, 36
(p. 344 of Ladino)(p. 9-10, Body of Vinuya)ASIAN SURVEY 1226, 1234
35 (1996).
2.The Women's InternationalThe Women's International WarFrom December 8 to 12, 2000,
War Crimes TribunalCrimes Tribunal (WIWCT) wasa peoples' tribunal, the
(WIWCT) was a "people'sa "people's tribunal" establishedWomen's International War
tribunal" established by aby a number of Asian womenCrimes Tribunal 2000, sat in
number of Asian women,and human rights organizations,Tokyo, Japan. It was
human rights organizations,supported by an internationalestablished to consider the
and supported by ancoalition of non-governmentalcriminal liability of leading
international coalition of non-organizations. 31 First proposedhigh-ranking Japanese military
governmental organizationsin 1998, the WIWCT convenedand political officials and the
("NGOs"). 101 First proposedin Tokyo in 2000 in order toseparate responsibility of the
in 1998, the WIWCT"adjudicate Japan's militarystate of Japan for rape and
convened in Tokyo in 2000 tosexual violence, in particular thesexual slavery as crimes
discuss the issue of enslavement of comfort women,against humanity arising out
comfort women. 102to bring those responsible for itof Japanese military activity in
Specifically, the WIWCTto justice, and to end thethe Asia Pacific region in the
aimed to "adjudicate Japan'songoing cycle of impunity for1930s and 1940s.
military sexual violence, inwartime sexual violence against
particular the enslavement of women."xxx xxx xxx
comfort women, to bring
those responsible for it to. . . The tribunal arose out of
7/6/14, 3:36 PM
justice, and to end the ongoingthe work of various women's

cycle of impunity for wartimenongovernmental
sexual violence againstorganizations (NGOs) across
women."Asia. . . .
Source:
101Christine M. Chinkin,31 Chinkin, Women'sChinkin, Women's
Women's InternationalInternational Tribunal onInternational Tribunal on
Tribunal on Japanese SexualJapanese Sexual Slavery,Japanese Sexual Slavery, 95
Slavery, 95 Am. J. Int'l. L.95 Am. J. Int'l. L. 335 (2001).AM. J. INT'L. L. 335 (2001).
335 (2001)
102 Violence Against Women
in War-Network Japan, What
is the Women's Tribunal?
http.//www1.jca.apc.org/
vaww-net-japan/English/
womenstribunal2000/
whatstribunal.html (last visited
Oct. 16, 2008).
(p. 345 of Ladino)(p. 12, Body of Vinuya)
3.A large amount of evidence32 A large amount of evidence
was presented to the tribunalwas presented to the tribunal for
for examination. Sixty-fourexamination. Sixty-four former
former comfort women fromcomfort women from Korea and
Korea and other surroundingother surrounding territories in
territories in the Asia-Pacificthe Asia-Pacific region testified
region testified before thebefore the court. Testimony was
court. 104 Testimony was alsoalso presented by historical
presented by historicalscholars, international law
scholars, international lawscholars, and two former
scholars, and two formerJapanese soldiers. Additional
Japanese soldiers. 105evidence was submitted by the. . . Prosecution teams from
Additional evidence wasprosecution teams of tenten countries presented
submitted by the prosecutiondifferent countries, including:indictments. 6 North and
teams of ten differentNorth and South Korea, China,South Korea, China, Japan,
countries, including: NorthJapan, the Philippines,the Philippines, Indonesia,
and South Korea, China,Indonesia, Taiwan, Malaysia,Taiwan, Malaysia, East
Japan, the Philippines,East Timor, and the Netherlands.Timor, and the Netherlands. . .
Indonesia, Taiwan, Malaysia,Id. [Chinkin] at 336.Two lead prosecutors (Patricia
East Timor, and theViseur Sellers 7 and Ustinia
Netherlands. 8) joined the
separate-country prosecutors
and presented a common
indictment.
104 Id. [Violence Against
Women in War-Network
Japan, What is the Women'sSource:
Tribunal?, http://www1.jca.
apc.org/vaww-net-japan/Chinkin, Women's
english/womenstribunal2000/International Tribunal on
whatstribunal.html (lastJapanese Sexual Slavery, 95
visited Oct. 16, 2008).]AM. J. INT'L. L. 335, 336
(2001).
105 Id.
106 Chinkin, supra note 101,
at 336.
(p. 345 of Ladino)(p. 12, footnote 32 of Vinuya)
After examining the evidenceAfter examining the evidence forThe preliminary judgment
for more than a year, themore than a year, the "tribunal"indicated that the judges had
tribunal issued its final verdictissued its verdict on Decemberfound Emperor Hirohito guilty
on December 4, 2001, finding4, 2001, finding the formerof the charges on the basis of
the former Emperor HirohitoEmperor Hirohito and the Statecommand responsibility, that
and the State of Japan guiltyof Japan guilty of crimes againsthe knew or should have
of crimes against humanityhumanity for the rape and sexualknown of the offenses. . . .
for the rape and sexual slaveryslavery of women. 32 It bearsThe judges also indicated that
of women. 107stressing, however, thatthey had determined Japan to
although the tribunal includedbe responsible under
xxx xxx xxxprosecutors, witnesses, andinternational law applicable at
7/6/14, 3:36 PM
judges, its judgment was notthe time of the events for

Although the tribunal includedlegally binding since theviolation of its treaty
prosecutors, witnesses, andtribunal itself was organizedobligations and principles of
judges, its judgment was notby private citizens.customary international law
legally binding since therelating to slavery, trafficking,
tribunal itself was organizedforced labor, and rape,
by private citizens. . . .amounting to crimes against
humanity. . . .
What was the value of this
exercise? Lacking legal
authority, was the tribunal no
more than a mock trial of little
concern to serious
international lawyers?
107Violence Against Women32 . . . Id. [Chinkin] at 336.
in War-Network Japan, supra
note 102. EScAID
(p. 345 of Ladino)(p. 12, Body of Vinuya)Source:

Chinkin, Women's
International Tribunal on
Japanese Sexual Slavery, 95
AM. J. INT'L. L. 335 (2001).
4.On January 31, 2007, UnitedOn January 31, 2007, USToday, Representative
States Representative MichaelRepresentative Michael HondaMichael M. Honda (CA
Honda of California, alongof California, along with six15) introduced a bipartisan
with six co-sponsorco-sponsor representatives,resolution before the U.S.
representatives, introducedintroduced House ResolutionHouse of Representatives
House Resolution 121. The121 which called for Japanesecalling on the government of
resolution called for Japaneseaction in light of the ongoingJapan to formally and
action in light of the ongoingstruggle for closure by formerunambiguously apologize for
struggle for closure by formercomfort women. Theand acknowledge the tragedy
comfort women. The HouseResolution was formally passedthat comfort women endured
of Representatives formallyon July 30, 2007, 33 and madeat the hands of its Imperial
passed the resolution on Julyfour distinct demands:Army during World War II. . .
30, 2007. 110 The resolution
also makes four distinctxxx xxx xxx
demands:
110 Press Release,33 Press Release, CongressmanThe resolution is cosponsored
Congressman Mike Honda,Mike Honda, Rep. Honda Callsby: Representatives Edward R.
Rep. Honda Calls on Japanon Japan to Apologize for WorldRoyce (CA 40),
to Apologize for World WarWar II Exploitation of "ComfortChristopher H. Smith (NJ - 4),
II Exploitation of "ComfortWomen" (January 31, 2007).Diane E. Watson (CA - 33),
Women" (Jan. 31, 2007),David Wu (R - 1), Phil Hare
available at http://www.house.(IL - 17), and Delegate
gov/list/press/ca15_honda/Madaleine Bordallo (GU).
COMFORTWOMEN.html.
(p. 346 of Ladino)(p. 12, Body of Vinuya)Source:
Press Release of Congressman
Mike Honda, Rep. Honda
Calls on Japan to Apologize
for World War II Exploitation
of "Comfort Women," 31 Jan.
2007, available at
http://www.house.gov/
list/press/ca15_honda/
COMFORTWOMEN.html
5.. . . The resolution alsoThe Resolution wasResolved, That it is the
makes four distinctformally passed on Julysense of the House of
demands:30, 2007,33 and madeRepresentatives that the
four distinct demands:Government of Japan
[I]t is the sense of the[I]t is the sense of the(1) should formally
House of RepresentativesHouse of Representativesacknowledge, apologize,
that the Government of that the Government of and accept historical
Japan (1) shouldJapan (1) shouldresponsibility in a clear
formally acknowledge,formally acknowledge,and unequivocal manner
apologize, and acceptapologize, and accept for its Imperial Armed
historical responsibilityhistorical responsibility Force's coercion of young
7/6/14, 3:36 PM
in a clear andin a clear and women into sexual

unequivocal mannerunequivocal manner slavery, known to the
for its Imperial Armedfor its Imperial Armedworld as "comfort
Forces' coercion of Forces' coercion of women", during its
young women intoyoung women intocolonial and wartime
sexual slavery, knownsexual slavery, knownoccupation of Asia and
to the world asto the world as the Pacific Islands from
"comfort women","comfort women",the 1930s through the
during its colonial andduring its colonial andduration of World War II;
wartime occupation of wartime occupation of
Asia and the PacificAsia and the Pacific(2) should have this
Islands from the 1930sIslands from the 1930sofficial apology given as
through the durationthrough the duration a public statement
of World War II; (2)of World War II; (2)presented by the Prime
would help to resolvewould help to resolveMinister of Japan in his
recurring questionsrecurring questionsofficial capacity;
about the sincerityabout the sincerity and
and status of priorstatus of prior (3) should clearly and
statements if the Primestatements if the Primepublicly refute any claims
Minister of Japan wereMinister of Japan werethat the sexual
to make such anto make such anenslavement and
apology as a publicapology as a public trafficking of the "comfort
statement in hisstatement in hiswomen" for the Japanese
official capacity;official capacity; (3)Imperial Armed Forces
(3) should clearlyshould clearly and never occurred; and
and publicly refutepublicly refute any
any claims that theclaims that the sexual(4) should educate current
sexual enslavementenslavement and and future generations
and trafficking of thetrafficking of theabout this horrible crime
"comfort women" for "comfort women" forwhile following the
the Japanese Imperialthe Japanese Imperialrecommendations of the
Army never occurred;Army never occurred;international community
and (4) should educateand (4) should educatewith respect to the
current and futurecurrent and future"comfort women".
generations aboutgenerations about this
this horrible crimehorrible crime while
while following thefollowing the
recommendations of recommendations of
the internationalthe international
community withcommunity withSource cited:
respect to the "comfortrespect to the "comfort
women." 111 women." 34
111 H.R. Res. 121, 110th 34 H.R. Res. 121, 110thH.R. Res. 121, 110th Cong.
Cong. (2007) (enacted).Cong. (2007) (enacted).(2007) (enacted), available at
http://www.gpo.gov/fdsys/
(p. 346 of Ladino)(p. 12, Body of Vinuya)pkg/BILLS-110hres121ih/pdf/
BILLS-110hres121ih.pdf
(U.S.)
6.In December 2007, theIn December 2007, theA resolution on the
European Parliament, theEuropean Parliament, the'comfort women' (sex
governing body of thegoverning body of theslaves) used by Japan in
European Union, drafted aEuropean Union, drafted aWorld War II calls for a
resolution similar to Houseresolution similar to Housechange of official attitudes
Resolution 121. 130 . . .Resolution 121. 35 Entitled,in modern-day Japan, a
Entitled, "Justice for "Justice for Comfort right for survivors or
Comfort Women," theWomen," the resolutionfamilies to apply for
resolution demanded: (1) ademanded: (1) a formalcompensation and measures
formal acknowledgment of acknowledgment of to educate people about
responsibility by theresponsibility by thethese historical events.
Japanese government; (2) aJapanese government; (2) a
removal of the legalremoval of the legalxxx xxx xxx
obstacles preventingobstacles preventing
compensation; and (3)compensation; and (3)Call for formal
unabridged education of theunabridged education of theacknowledgment of
past. 132 The resolution alsopast. The resolution alsoresponsibility by
stresses the urgency withstressed the urgency withgovernment
which Japan should act onwhich Japan should act on
these issues, stating: "thethese issues, stating: "thexxx xxx xxx
right of individuals to claimright of individuals to claim
7/6/14, 3:36 PM
reparations against thereparations against theLegal obstacles to

government should begovernment should becompensation must be
expressly recognized inexpressly recognized inremoved
national law, and cases fornational law, and cases for
reparations for thereparations for the survivorsxxx xxx xxx
survivors of sexual slavery,of sexual slavery, as a crime
as a crime underunder international law,Education about the past
international law, should beshould be prioritized, taking
prioritized, taking intointo account the age of thexxx xxx xxx
account the age of thesurvivors."
survivors." 133 . . .Source cited:
130 European Parliament,35 European Parliament,European Parliament,
Human rights: Chad,Human rights: Chad,Human rights: Chad,
Women's Rights in SaudiWomen's Rights in SaudiWomen's Rights in Saudi
Arabia, Japan's WartimeArabia, Japan's Wartime SexArabia, Japan's Wartime
Sex Slaves, Dec. 17, 2007,Slaves, Dec. 17, 2007,Sex Slaves, (17 Dec. 2007)
http://www.europarl.http://www.europarl.europa.available at
europa.eu/sides/eu/sides/getDoc.do?http://www.europarl.europa.
getDoc.do?language=ENlanguage=EN&type=IM-eu/sides/getDoc.do?
&type=IM-PRESS&PRESS&reference=2007121language=EN&type=IM-
reference=200712100BRI14639&secondRef=ITPRESS&reference=200712
BRI14639&secondEM-008-EN.10BRI14639&secondRef=I
Ref=ITEM-008-EN.TEM-008-EN
132 Id.
133 Id.
(p. 360 of Ladino)(p. 13, Body of Vinuya)
7.The Canadian and DutchThe Canadian and Dutch
parliaments have eachparliaments have each
followed suit in draftingfollowed suit in drafting
resolutions against Japan.resolutions against Japan.
Canada's resolutionCanada's resolution
demands the Japanesedemands the Japanese
government to issue agovernment to issue a
formal apology, to admitformal apology, to admit
that its Imperial Militarythat its Imperial Military
coerced or forced hundredscoerced or forced hundreds
of thousands of women intoof thousands of women into
sexual slavery, and tosexual slavery, and to restore
restore references inreferences in Japanese
Japanese textbooks to itstextbooks to its war
war crimes. 134 The Dutchcrimes. 36 The Dutch
parliament's resolutionparliament's resolutionNote:
simply calls for thecalls for the Japanese
Japanese government togovernment to uphold theOn the issue of comfort
uphold the 1993 declaration1993 declaration of remorsewomen, the website only
of remorse made by Chief made by Chief Cabinetrefers to the attitude and
Cabinet Secretary YoheiSecretary Yohei Kono.reaction of the following
Kono. 135 governments: Taiwan,
South Korea, North Korea,
135 The Comfort Women A36 The Comfort Women APhilippines, China,
History of Trauma,History of Trauma,Indonesia, Malaysia, and
http://taiwan.yam.org.tw/http://taiwan.yam.org.tw/Japan.
womenweb/conf_women/womenweb/conf_women/
index_e.html. (last visitedindex_e.html.
Mar. 26, 2009).Source cited:
134 Id.http://taiwan.yam.org.tw/
womenweb/conf_women/
(p. 360 of Ladino)(p. 13, Body of Vinuya)index_e.html
Violations of Rules Against Plagiarism in the Vinuya Decision
Below are violations of existing rules against plagiarism as can be found in the Vinuya Decision, in addition to violations earlier enumerated in
my Dissent:
A.1A passage from the article of Criddle and Fox-Decent was copied verbatim, including the footnote. There are no quotation marks to
indicate that this important conclusion from the article and the example to illustrate it, which were discussed in the corresponding footnote,
are not the ponente's own. No attribution to Criddle and Fox-Decent was made.
7/6/14, 3:36 PM
A.2Similar to A.1, Criddle and Fox-Decent's conclusion was copied word for word, including the corresponding footnote, which was
enclosed by parentheses and placed immediately after the sentence to which it corresponds. No attribution to Criddle and Fox-Decent was
made.
A.3Similar to A.1 and A.2, this sentence from the article was copied verbatim, including its corresponding footnote. No attribution to Criddle
and Fox-Decent was made.
B.1Save for a few words which were intentionally rearranged, the entire paragraph was lifted verbatim from Ellis's discussion on rape as an
international crime. Two citations of cases from Ellis were omitted. No attribution to Ellis was made.
B.2Ellis's identification of Article 3 of the 1949 Geneva Conventions as a general authority on rape as a violation of the laws of war, and his
summation thereof, was lifted word for word. His footnote was also copied, including the intratext reference "supra note 23," enclosed in
parentheses and inserted after the corresponding text. No attribution to Ellis was made.CADSHI
B.3Ellis's summary and analysis of Article 27 of the Fourth Geneva Convention was lifted word for word. No attribution to Ellis was made.
B.4Ellis's conclusion regarding Protocol I of the Geneva Convention was appropriated, without any attribution to Ellis. Ellis's footnote was
again copied. No attribution to Ellis was made.
C.1McCorquodale's analysis of individual claims within the international legal system was copied word for word and inserted after the
introductory clause "In the international sphere" in Vinuya. The footnote McCorquodale appended to his analysis of individual claims (i.e., the
sentences copied in C.1.) is not present. No attribution to McCorquodale was made.
C.2This item refers to the footnote attached to the copied sentence in C.1. It is composed of two instances of copying stitched together: two
sentences of McCorquodale, taken from the paragraph directly preceding his analysis of individual claims in the international legal system,
and the footnote corresponding to the PCIJ Decision quoted in the second of the said two sentences. No attribution to McCorquodale was
made.
C.3The conclusion Okowa reached was copied in footnote 63 of Vinuya, but Okowa's reference to the cases she cited in her analysis was
omitted and the context of her conclusion (on the current standing of general international law with regard an enforceable legal duty of
diplomatic protection) was removed. No attribution to Okowa was made.
C.4McCorquodale's discussion of the case Abassi v. Secretary of State was copied without any citation of his essay or the international law
book in which it was published. No attribution to McCorquodale was made.
C.5The order of sentences were reversed, but the conclusion in Okowa's essay was copied, and as well as her discussion of the case Kaunda v.
President of the Republic of South Africa. No attribution to Okowa was made.
D.1Albornoz's summary and analysis was copied word for word in the body of the Decision on page 24. No indication was given that this
was not the ponente's original analysis, and no attribution to Albornoz was made.
D.2The elucidation of Albornoz regarding what she calls the traditional view on the discretion of states in the exercise of diplomatic
protection was copied into footnote 57 of the Vinuya Decision. Albornoz's citation of Borchard was used as a reference in the same footnote,
but Albornoz was bypassed completely.
D.3Albornoz's summation of the ILC's First Reading Draft Articles on diplomatic protection was copied with some modifications: the second
half of the first sentence from Albornoz was removed and instead replaced with "fully support this traditional view" in an apparent effort to
link this summary to the previous instance of copying (table entry D.2.). Minor edits were made to Albornoz's summary to streamline the flow
of the second copied sentence. No attribution to Albornoz was made.
D.4Albornoz's summation of Dugard's proposal was lifted word for word and used in footnote 62 of Vinuya. The footnote Albornoz attached
to this summation, a quotation of Albornoz's cited source, was inserted directly after the copied summation. No attribution to Albornoz was
made.
D.5The conclusion reached by Albornoz regarding the rejection of Dugard's proposal was copied exactly, even with regard to the portions of
the Official Records of the General Assembly that Albornoz quoted. No attribution to Albornoz was made.
D.6The major part of a sentence from Albornoz was copied and attached to the transition phrase "In addition" to continue the pastiche of
copied sentences in footnote 62 of Vinuya. The footnote of Albornoz regarding Dugard was inserted immediately after and enclosed in
parentheses. Note that the inline text citation, "supra note 13, par. 80" in Albornoz's footnote 130 was copied as well. No attribution to
Albornoz was made.
D.7Continuing from the instance of copying in D.6., the second half of a sentence in Albornoz was used as what is apparently an incomplete
sentence (beginning with: ", but their enforceability . . .") in footnote 62 of Vinuya. The next sentence was also copied, and its corresponding
footnote enclosed in parentheses and inserted immediately after it. While the Decision cites one of the same sources Albornoz cited (ILC First
Reading Draft Articles on Diplomatic Protection), no attribution is made to Albornoz for the excerpt, or to Dugard, whom Albornoz cited for
the quoted portion.
E.1An excerpt from the third paragraph of Prochaska is reproduced verbatim in footnote 62 of page 26 of the Decision. There were no
quotation marks or attribution to Prochaska to indicate that such was not the ponente's analysis, but Prochaska's.aAHSEC
F.1A sentence from paragraph 11 of Niksch was reproduced verbatim without quotation marks in page 17 of the body of the Decision. No
attribution to Niksch was made.
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F.2An excerpt from paragraph 12 of Niksch was reproduced verbatim without quotation marks in page 17 of the body of the Decision. No
F.3An excerpt from paragraph 19 of Niksch was reproduced verbatim without quotation marks in page 17 of the body of the Decision. No
G.1An excerpt from page 344 of Ladino was reproduced without quotation marks in pages 9 to 10 of the body of the Decision. The phrase
"women who had filed" was changed to "comfort women."
G.2An excerpt from page 345 of Ladino was reproduced without quotation marks in page 12 of the body of the Decision. The two sentences
in the footnote from Ladino were combined, but the words were reproduced verbatim.
G.3An excerpt from page 345 of Ladino is reproduced verbatim in page 12 of the body of the Decision. Part of Ladino's discussion was
reproduced verbatim in footnote 32 of the Vinuya Decision, with no attribution to Ladino.
G.4The first part of the paragraph in page 345 of Ladino was reproduced verbatim. However, the latter part of Ladino's explanation, (stating
that while the judgment against Japan was not legally binding, it still "cast Japan in the shadow of moral reproach") was omitted. There was
no attribution to Ladino.
G.5An excerpt from page 346 of Ladino, along with two footnotes, was reproduced verbatim in page 12 of the Decision. No attribution to
Ladino was made.
G.6Ladino's discussion in page 350 and the corresponding footnotes were reproduced verbatim in page 13 of the Decision. No attribution to
Ladino was made.
B.The Process of the Commission of Plagiarism in the Vinuya Decision
A careful reading of the Vinuya Decision reveals that it is unlike other decisions issued by this Court, except perhaps for the case of Ang Ladlad
LGBT Party v. Commission on Elections, which Justice del Castillo likewise penned. The footnotes in Vinuya read like those found in theses of
international law scholars, where one discursive footnote can be so extensive as to occupy three-fourths of a page (see footnotes 62, 63, and 65).
An honest researcher for a Philippine judge, after painstakingly developing a perspective on an international legal issue by reading the works of
scholars who have documented the debate, would deliberately refer to the works of such scholars, and not transform their works into his own.
Justice del Castillo's researcher not only contends that accidental deletion is the sole reason for the missing footnotes, but also that their office
subsequently went over the Decision "sentence by sentence" and concluded that no plagiarism was committed at all. However, the rearrangement
of the sentences lifted from the original work, the mimicking of the original work's use of footnotes, the subsequent back and forth copying and
pasting of such footnotes these acts belie mere negligence. The following analysis shows objective plagiarism viewed through three lenses:
extent, deliberateness, and effect.
The massiveness and frequency with which instances of unattributed copying occur in Vinuya highlight the extent of the plagiarism. Clever
transpositions of excerpts to make them flow according to the researcher's transition phrases are clearly devices of a practiced plagiarist, which
betray the deliberateness of every single act. The plagiarism in Vinuya will also be scrutinized on the basis of its effect, especially in light of its
commission in a judicial decision. The rationale for such a thematic presentation will then be discussed in a succeeding section, which deals with
evaluating plagiarism.
1.The extent of unattributed copying belies inadvertence.
In the tables outlined above, as well as in the analysis in my Dissent dated 12 October 2010, it can be seen that the researcher of Justice del
Castillo failed to make the necessary attribution twenty-three (23) times in the body of the Vinuya Decision; the works whose texts were used
without attribution include several copyrighted journal articles, essays from a book on international law, and one congressional report of the
United States. There were thirty-six (36) missing citations in the footnotes, including twelve (12) citations missing from footnote 65 alone. This
adds up to a total of fifty-nine (59) missing citations. The sheer number of missing citations is related to the length and volume of the footnotes
and discussions, some of which Justice del Castillo himself admitted to be unnecessary. SEHACI
The quantity of text copied without attribution is most concentrated in pages 12 to 13, which deal with actions taken in the pursuit of justice for
the comfort women, and in pages 24 to 32, which appear under the section heading The Philippines is not under any international obligation to
espouse petitioners' claims. In the latter section, the discussion and analysis appearing on pages 24 (insofar as the section after the start of the
international law discussion is concerned), 28 and 31 in particular would be significantly impaired were the unattributed portions of texts to be
removed: there would be no words left in the instance of page 24; the entirety of the discursive footnote on page 28 would be reduced to one
sentence and its attendant citations; three sentence fragments, and no footnotes, would remain on page 31.
In pages 24 to 32, out of a total of thirteen (13) discursive footnotes, eleven (11) of these are comprised wholly of material copied without
attribution, and yet another one footnote 69 contains text that was copied without attribution as well. The writer of the Vinuya Decision
displayed meticulous attention to detail in reproducing the citations to international judicial decisions, publications, and other such references in
these footnotes citations that originally appeared in the copied works but completely bypassed the copied works themselves, thereby
appropriating the analysis, processing, and synthesizing of information, as well as the words, of the writers whose works were copied.
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On its face, the sheer volume of portions copied, added to the frequency with which citations to the plagiarized works were omitted while care
was taken to retain citations to the sources cited by the plagiarized works, reveal that the plagiarism committed cannot logically be anything other
than deliberate.
2.Systematic commission of plagiarism demonstrates deliberateness.
In pages twelve (12) to thirteen (13) of Vinuya, sentences from the body of Ladino's article were interspersed with Ladino's footnotes, without a
single attribution to Ladino (please refer to Table G). Sentences from Ladino's article were copied into footnote 32 of Vinuya, while the
immediately succeeding sentence was again copied to form part of the body of Vinuya. The cutting of sentences from Ladino's work and the
patching together of these pieces to form a mishmash of sentences negate the defense of inadvertence, and give the reader the impression that the
freshly crafted argument was an original creation.
The work of Criddle and Fox-Decent was subjected to a similar process. This process is dissected in the following list of instances ordered
according to how they appear in pages 31 to 32 of the body of the Decision:
a.Detailed analysis of 'patchwork plagiarism' in the body of Vinuya, pp. 31-32:

1.Page 31, par. 2: Early strains of the jus cogens doctrine have existed since the 1700s,[71] but peremptory norms began to attract greater
scholarly attention with the publication of Alfred von Verdross's influential 1937 article, Forbidden Treaties in International Law.[72]
[72] Verdross argued that certain discrete rules of international custom had come to be recognized as having a compulsory character
notwithstanding contrary state agreements. At first, Verdross's vision of international jus cogens encountered skepticism within the legal
academy. These voices of resistance soon found themselves in the minority, however, as the jus cogens concept gained enhanced
recognition and credibility following the Second World War. (See Lauri Hannikainen, Peremptory Norms (Jus cogens) in International
Law: Historical Development, Criteria, Present Status 150 (1988) (surveying legal scholarship during the period 1945-69 and reporting
that "about eighty per cent [of scholars] held the opinion that there are peremptory norms existing in international law").
This sentence, together with footnote 72 in Vinuya, is part of one continuous discussion by Criddle and Fox Decent, and copied
verbatim. The two authors rightfully attributed the historical data to Lauri Hannikainen, but the conclusion on established jus
cogens principles is wholly their own.
2.Page 31, par. 2: The recognition of jus cogens gained even more force in the 1950s and 1960s with the ILC's preparation of the Vienna
Convention on the Law of Treaties (VCLT).[73] Though there was a consensus that certain international norms had attained the status
of jus cogens . . . [74]
The first sentence and its subsequent clause are lifted verbatim from the article. Footnotes 73 and 74 are Criddle and Fox-
Decent's analysis of how international "minimum requirements" form evidence of jus cogens. The paragraph was broken down,
then rearranged in Vinuya. ADScCE
3.Page 31, par. 2: Though there was a consensus that certain international norms had attained the status of jus cogens,[74] the ILC was
unable to reach a consensus on the proper criteria for identifying peremptory norms.
Aside from copying the first clause in the sentence, which forms part of the premise, the conclusion of Criddle and Fox-Decent
was likewise copied.
4.Page 32, par. 1: After an extended debate over these and other theories of jus cogens, the ILC concluded ruefully in 1963 that "there is not
as yet any generally accepted criterion by which to identify a general rule of international law as having the character of jus cogens."
[75]
After copying the sentence and footnote in No. 4 above, three sentences were omitted from the article, then this sentence in No. 5
was also copied. In the body of the work, the two sentences immediately following this statement pertaining to the conclusion of
the International Law Commission were again omitted.
5.Page 32, par. 1: In a commentary accompanying the draft convention, the ILC indicated that "the prudent course seems to be to . . . leave
the full content of this rule to be worked out in State practice and in the jurisprudence of international tribunals."[76]
This sentence was conjoined with the sentence above; footnotes 75 and 76 were also copied. The net effect is that this paragraph
was spliced together, sentence by sentence, from Criddle and Fox-Decent's work.
A similar method of splicing was used extensively in the footnotes of the Decision as well. It is most evident in footnote 65, the longest
discursive footnote in Vinuya. This portion copied heavily from the article of Dr. Mark Ellis entitled "Breaking the Silence: Rape as an
International Crime." To illustrate, the first paragraph of footnote 65 is broken down and scrutinized by sentence, following the original sequence
in the Decision.
b.Detailed analysis of 'patchwork plagiarism' in paragraph 1, footnote 65 of Vinuya:
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1.Sentences 1 and 2: The concept of rape as an international crime is relatively new. This is not to say that rape has never been historically
prohibited, particularly in war.
These are the opening sentences from the second paragraph on page 227 of the journal article. Ellis cites the treaty between the
United States and Prussia as his own example, in a footnote. In Vinuya, this particular citation is copied, enclosed in parentheses,
and became the sixth and seventh sentences of footnote 65.
2.Sentence 3: But modern-day sensitivity to the crime of rape did not emerge until after World War II.
This is the sixth sentence in the same paragraph in Ellis' article as discussed above. It is transposed verbatim, and became the
second sentence in Vinuya.
3.Sentences 4 and 5: In the Nuremberg Charter, the word rape was not mentioned. The article on crimes against humanity explicitly set forth
prohibited acts, but rape was not mentioned by name.
The clauses "After World War II, when the Allies established the Nuremberg Charter . . ." was deleted. This particular sentence is
Ellis' own conclusion regarding the "Agreement for the Prosecution and Punishment of the Major War Criminals of the European
Axis," but there was no attribution to Ellis, only a citation of the agreement, along with Ellis's other footnotes, at the end of the
paragraph.
4.Sentences 6 and 7: (For example, the Treaty of Amity and Commerce between Prussia and the United States provides that in time of war
all women and children "shall not be molested in their persons." The Treaty of Amity and Commerce, Between his Majesty the King
of Prussia and the United States of America, art. 23, Sept. 10, 1785, U.S.-Pruss., 8 Treaties & Other Int'l Agreements of the U.S. 78,
85. IEaCDH
This is the citation originally corresponding to the first and second sentences on page 227 of Ellis's article. This portion was
copied in Vinuya, this time placed at the end of the paragraph and enclosed in parentheses.
5.Sentence 8: The 1863 Lieber Instructions classified rape as a crime of "troop discipline."
Originally the second sentence in Ellis's paragraph, this was transposed to the eighth. Its corresponding footnote in Ellis was
lifted verbatim, enclosed in parentheses, then inserted into the paragraph in Vinuya, as the ninth sentence: "(Mitchell, The
Prohibition of Rape in International Humanitarian Law as a Norm of Jus cogens: Clarifying the Doctrine, 15 Duke J. Comp. Int'l.
L. 219, 224)."
6.Sentence 10: It specified rape as a capital crime punishable by the death penalty.
Originally the fourth sentence in Ellis' article, this was transposed, and its corresponding footnote was copied: "(Id. at 236)."
7.Sentence 11: The 1907 Hague Convention protected women by requiring the protection of their "honour."
The sentence was copied, and its corresponding footnote was lifted verbatim, enclosed in parentheses, and placed at the end of the
paragraph. Ellis's attribution to the Yale Law website where the pertinent law may be found was omitted, leaving only the
following: ("Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice,
must be respected." Convention (IV) Respecting the Laws & Customs of War on Land, art. 46, Oct. 18, 1907. General Assembly
resolution 95 (I) of December 11, 1946 entitled, "Affirmation of the Principles of International Law recognized by the Charter of
the Nrnberg Tribunal"; General Assembly document A/64/Add.1 of 1946".
8.Sentence 13: See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat.
1544, 82 U.N.T.S. 279.
This is originally Ellis's citation, used to support his observation that there was no express mention of "rape" in the Nuremberg
Charter. It was enclosed in parentheses and relegated to the end of the paragraph in Vinuya.
9.Sentence 14: Article 6 (c) of the Charter established crimes against humanity as the following:
CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against
any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection
with any crime within the Jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
This was lifted from page 227 of Ellis's work. Pages 227 to 228 of the said work, pertaining to the discussion on rape were
substantially copied. Insertions were made for Ellis's own footnotes.
The conscious thought required for the act of cutting and pasting the original author's footnotes onto the precise spot where the copied sentences
ended contradicts the account of inadvertence. There is consistent correspondence between the sentences copied to the footnote copied. In the
example above, the act of encapsulating Ellis' footnotes in parentheses show further that in Vinuya there was a conscious appropriation of Ellis's
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sources in a usage that is substantially similar to what appears in his article. This allegedly inadvertent copying of Ellis's footnotes occurred no
less than twelve (12) times in footnote 65 alone.
3.Research steps purportedly followed in the drafting of Vinuya cast doubt on inadvertence.
The following is a recreation of the step-by-step research procedure followed by many offices in the research and crafting of judicial decisions. It
is based on the account given by the researcher of the Vinuya Decision of her own experiences while working on the case. This detailed
breakdown is made in order to show the exact number of actions which must be made in order to input a citation, if indeed it was intentionally
inputted. A recreation of the steps necessary to delete a citation is also made to show that the aggregate number of actions needed to erase each
and every citation missing in Vinuya is so high that the underlying cause could not have been mere inadvertence. TAacIE
Step 1:
a.First, using an internet-based search engine, which could be a free search service like Google's, or a paid service like Westlaw's,
the researcher would have typed in key phrases like "erga omnes," "sexual slavery," or other such terms relevant to the
subject matter.
b.For some researchers, this is just a preliminary step, as they would then pick and choose which articles to read and which to
discard. The researcher in Vinuya, however, claimed that she purposely read all the materials available through this search.
8
Step 2:
a.The search engine would have generated a list of documents containing the search terms and topics relevant to the subject
matter. The search engine would also have linked the items on this list to the corresponding online locations where these
documents may be accessed.
b.In Vinuya, the researcher used the Westlaw legal research service (which is made available to offices of all the Justices), and
perused the generated list. 9 A possible item on this list would be the article entitled "Breaking the Silence: Rape as an
International Crime," by one of the complaining authors, Dr. Mark Ellis.
Step 3:
The researcher would read articles from the generated list and identify the portions she planned to incorporate into the draft. For
this example, she would have scrolled through the work of Mark Ellis and found the selection she wanted. The level of
scrutiny invested into each of the chosen articles would vary; some researchers make cursory readings and incorporate as
many portions from different works and authors as they can.
Step 4:
a.The researcher can either save the articles in their entirety, or save the selections in one document. The researcher in Vinuya
claimed that she did the latter and used the Microsoft Word program for this purpose.
b.If the researcher chose to save only pertinent selections, then ideally the attributions would have to be made at his point.
Now, this step is critical. I know of no software in the world, especially not Microsoft Word, that will generate the citation to the work of Ellis on
its own, without the appropriate action of the user. An honest researcher would immediately copy and paste the citation references of Ellis into
the copied portions, or type a reference or label in, even if it were only a short form placeholder of the proper citation. If she did neither, she may
be sloppy, incompetent or downright dishonest.
During the deliberations of the Ethics Committee, the researcher explained this crucial step: "So I would cut and paste relevant portions, at least
portions which I find relevant into what turns out to be a large manuscript which I can then whittle and edit and edit further." 10 Adhering to this
account, there would be an additional step in the process:
Step 5:
If an existing draft or "manuscript" has already been created, the next step would be to incorporate the selections from the articles
into the draft. This is a second opportunity to ensure that the proper attributions are made. If the researcher is diligent, she
would already have tried to follow the correct form as prescribed by the Manual of Judicial Writing. 11
If a "manuscript" or outline has already been formulated, then incorporating the selections would require her to be conscious that these ideas and
arguments are not her own. The process ideally alerts any researcher that extraneous sources are being added. It allows her to make the following
considerations: Does this portion sufficiently discuss the historical context of a particular conclusion? Do I need this literature as support for my
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arguments? Am I including it to support my arguments, or merely to mimic the author's? Corollarily, the researcher would initially assess if such
argument made by the author is adequately supported as well. She would check the author's footnotes. In Vinuya, the copying of the footnotes
was so extensive, such that it practically used the uncited works as blueprint for the Decision's footnotes.IDEHCa
4.The frequency of instances of missing citations and actions required for deletion betray deliberateness.
To purposefully input citations would require many key strokes and movements of the computer's "mouse." If the attributions had indeed been
made already, then the deletions of such attributions would not simply happen without a specific sequence of key strokes and mouse movements.
The researcher testified that the necessary attributions were made in the earlier drafts, but that in the process of cutting and pasting the various
paragraphs, they were accidentally dropped. She makes it sound as if something like a long reference citation can just easily fall by the wayside.
Not so.
The reference required under the Manual of Judicial Writing for the work of Ellis reads like this: "Mark Ellis, Breaking the Silence: Rape as an
International Crime, 38 CASE W. RES. J. INT'L L. 225 (2006-2007)."
The researcher in Vinuya explained that footnotes were deleted along with headings of certain portions, and with the deletion of the note
reference mark in the body of the text, the citations in the document's footers disappeared also. For this scenario to happen with the same
frequency as the number of missing citations, the following steps must have been followed:
1.First movement: Using hand and eye coordination, consciously move cursor to the location of target footnote and/or heading, using either
the mouse or arrow keys.
2.Second movement: Select the "note reference mark" by highlighting the target footnote number. Note that unlike in normal characters or
texts wherein a single press of the "delete" or "backspace" button would suffice, a footnote number must be highlighted before it can be
deleted. This means that either the particular footnote and/or heading must have been "double-clicked" or it must have been specifically
highlighted by a precise horizontal motion of the cursor while pressing on a mouse button both of which require two movements (either
two "clicks", or a "click" and a "swipe").
3.Third movement: Press "delete" or "backspace" key.
Note that in the case wherein the note reference mark was not highlighted by a mouse movement, the "delete" or "backspace" key must have
been pressed twice, as pressing it only once will merely highlight the note reference mark without deleting the same.
Hence, even accommodating the explanation given by the researcher, at least four movements must have been accomplished to delete one
footnote or reference. Multiply this with the number of references that were "dropped" or "missing," and you have a situation wherein the
researcher accomplished no less than two hundred thirty-six (236) deliberate steps to be able to drop the fifty-nine (59) citations that are missing
in Vinuya. If by some chance the cursor happened to be at the precise location of the citations, and the citations were subsequently deleted by an
accidental click of the mouse, this would still have necessitated a total of one hundred seventy seven (177) clicks. It is understandable if a
researcher accidentally deleted one, two or even five footnotes. That a total of 59 footnotes were erased by mere accident is inconceivable.
To make a conservative estimate, we can deduct the number of times that a footnote number in the body of the Decision could simply have been
deleted inadvertently. Our analysis indicates that this could have happened a third of the time, or an estimate of twenty times, when short
footnotes containing "supra" or "id." could have been easily forgotten or omitted. This would still have yielded sixty deliberate steps or
movements, and would alert the researcher either that: 1) too much of the body comprises ideas which are not his own, or 2) too many of the
sources in his "main manuscript" were getting lost. Subsequently, if more than half of the attributions in the International Law discussion went
missing, the simple recourse would have been either to review his or her first draft, or simply delete his lengthy discursive footnotes precisely
because he cannot remember which articles he might have lifted them from.
On Microsoft Word features that alert the user to discrepancies in footnote deletions
The researcher took pains to deliberately cut and paste the original sources of the author, thereby making it appear that she was the one who
collated and processed this material. What she should have done was simply to cite the author from whom she took the analysis and
summarization of the said sources in the first place. The latter would have been the simple, straightforward, not to mention honest path. Instead,
the effect is that the Vinuya Decision also appropriated the author's analysis. Actually, it would have been easier to cite the author's copied work
considering the availability of short citation forms commonly used as reference tools in legal articles such as "supra" or "id." AIHDcC
Microsoft Word may not have an automatic alarm each time a footnote or citation is deleted, but it does contain built-in features to help raise "red
flags" to signal that a particular passage was copied, or is attached to a particular citation if indeed such citation exists. For example, the
researcher in Vinuya, in describing her own process of drafting the Decision, stated that portions containing footnotes from the first Vinuya draft
were lifted and transformed into the contents of a separate footnote. In short, during revisions of the draft, substantial footnoted portions which
used to be in the body were relegated to footnotes. This does not result, however, in the automatic erasure of the original footnotes within the new
footnote. A simple recreation of this process reveals that this "footnote within a footnote" retains a number symbol in superscript, albeit one
altered due to the redundancy in the functionality of "footnotes within footnotes." Any reasonably prudent researcher would thus be alerted to the
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fact that something was amiss with the citations in that particular selection because the footnote would have abnormal numeric superscripts. This
glaring abnormality in itself is a warning.
Another notable feature is that when a cursor, as seen on the screen in an open document, is placed over a footnote reference mark, Microsoft
Word automatically supplies that footnote's citation in a popup text box. The popup box hovers over the numerical superscript, unmistakably
indicating the source. 12 In addition, no single action can cause a footnote to be deleted; once the cursor is beside it, either the "delete" or
"backspace" key must be pressed twice, or it must be deliberately highlighted and then erased with a stroke of either the "delete" or the
"backspace" key. This functionality of footnote deletion in Microsoft Word thus decreases the likelihood of footnotes being deleted without the
knowledge or intention of the researcher.
As to the claim of the researcher that the footnotes in the headings were accidentally deleted, there was a failure on the part of the Ethics
Committee to thoroughly investigate the matter when they relied on a presentation of what, according to the researcher, happened during her
research for and drafting of the Vinuya Decision. Instead of asking her to re-create the various situations of "inadvertent dropping," the Ethics
Committee satisfied itself with a "before" and "after" Microsoft PowerPoint presentation which could not, by any stretch of the imagination, have
recreated the whole process of researching and drafting that happened in Vinuya unless every step were to be frozen through screenshots using
the "Print Screen" command in tandem with a common image management program. To simply present the "before" and "after" scenario through
PowerPoint has no bearing on the reality of what happened. Had the Ethics Committee required that the presentation made before them be
through recreation of the drafting process using Microsoft Word alone, without "priming the audience" through a "before" and "after" PowerPoint
presentation, they would have seen the footnotes themselves behaving strangely, alerting the researcher that something was seriously wrong. The
Committee would then have found incredible the claim that the accidental deletion of a footnote mark attached to a heading and the
subsequent transposition of text under that heading to another footnote could have occurred without the researcher being reminded that the
text itself came from another source. Proof of deliberate action is found in the Vinuya Decision itself the care with which the researcher
included citations of the sources to which the authors of the copied works referred, while conveniently neglecting attribution to the copied works
themselves.
It is therefore impossible to conclude that such gross plagiarism, consisting of failure to attribute to nine (9) copyrighted works, could have been
the result of anything other than failure to observe the requirements of the standard of conduct demanded of a legal researcher. There is also no
basis to conclude that there was no failure on the part of Justice del Castillo to meet the standard of supervision over his law clerk required of
incumbent judges.
III.On Evaluating Plagiarism

A.Posner's Standards for Evaluating the Characterization of Incidents of Plagiarism
To be generous to my colleagues in this part of my analysis, I have referred to one of the scholars who hold the most liberal views on plagiarism,
Judge Richard A. Posner. The three guideposts by which I structured my technical analysis of the instances of plagiarism in the Vinuya Decision
come from his breakdown of certain key issues in his work, The Little Book of Plagiarism. In his "cook's tour" of the key issues surrounding
plagiarism, wherein he is more liberal than most academics in speaking of the sanctions the act may merit he is against the criminalization of
plagiarism, for instance, and believes it an act more suited to informal sanctions 13 Judge Posner characterizes plagiarism thus:
Plagiarism is a species of intellectual fraud. It consists of unauthorized copying that the copier claims (whether explicitly or implicitly,
and whether deliberately or carelessly) is original with him and the claim causes the copier's audience to behave otherwise than it would
if it knew the truth. This change in behavior, as when it takes the form of readers' buying the copier's book under the misapprehension
that it is original, can harm both the person who is copied and the competitors of the copier. But there can be plagiarism without
publication, as in the case of student plagiarism. The fraud is directed in the first instance at the teacher (assuming that the student bought
rather than stole the paper that he copied). But its principal victims are the plagiarist's student competitors, who are analogous to authors
who compete with a plagiarist. 14
Posner then goes on to neatly sum up, in the form of three "keys," major considerations that need to be taken into account when evaluating an
occurrence of plagiarism. His book's last paragraph reads: cHDAIS
In the course of my cook's tour of the principal issues that have to be addressed in order to form a thoughtful response to plagiarism in
modern America, I have challenged its definition as "literary theft" and in its place emphasized reliance, detectability, and the extent of
the market for expressive works as keys to defining plagiarism and calibrating the different types of plagiarism by their gravity. I
have emphasized the variety of plagiarisms, argued for the adequacy of the existing, informal sanctions, pointed out that the "fair use"
doctrine of copyright law should not protect a plagiarist, noted the analogy between plagiarism and trademark infringement (a clue to the
entwinement of the modern concept of plagiarism with market values) and warned would-be plagiarists that the continuing advance of
digitization may soon trip them up. (Emphasis supplied.)
It is in this spirit that the three questions of extent, an analogue of reliance, as extensive plagiarism correlates to the reliance of the text on the
copied work; deliberateness; and effect, an analogue of what Posner called "extent of the market for expressive works", used here in the context
of the effect of plagiarism in the Vinuya Decision were put to the text being scrutinized. The first two questions have been discussed in
preceding sections. To examine the effect, one must first make the distinction between the effect of copying a copyrighted work without
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attribution, and between the effect of copying without attribution a work in the public domain. Using these three guideposts, we can them come
to a conclusion whether the plagiarism is relatively harmless and light or something severe and harmful. In the case of the Vinuya Decision, we
have come to conclude that the plagiarism is severe; and because judicial decisions are valuable to the Philippine legal system, that the plagiarism
harms this institution as well.
1.The distinction between the effect of appropriating copyrighted works and works in the public domain
The infringement of copyright necessitates a framework for characterizing the expression of ideas as property. It thus turns on a question of
whether there exists resultant harm in a form which is economically quantifiable. Plagiarism, on the other hand, covers a much wider range of
acts. In defining copyright infringement, Laurie Stearns points out how it is an offense independent from plagiarism, so that an action for
violation of copyright which may take on either a criminal and a civil aspect, or even both does not sufficiently remedy the broader injury
inherent in plagiarism.
Plagiarism is not necessarily copyright infringement, nor is copyright infringement necessarily plagiarism . . . In some ways the concept
of plagiarism is broader than infringement, in that it can include the copying of ideas, or of expression not protected by copyright, that
would not constitute infringement, and it can include the copying of small amounts of material that copyright law would disregard. 15
Plagiarism, with its lack of attribution, severs the connection between the original author's name and the work. A plagiarist, by falsely
claiming authorship of someone else's material, directly assaults the author's interest in receiving credit. In contrast, attribution is largely
irrelevant to a claim of copyright infringement . . . infringement can occur even when a work is properly attributed if the copying is not
authorized for example, a pirated edition of a book produced by someone who does not own the publication rights. 16
The recognition of plagiarism as an offense that can stand independently of copyright infringement allows a recognition that acts of plagiarism
are subject to reproof irrespective of whether the work is copyrighted or not. In any case, the scenario presented before the Court is an
administrative matter and deals with plagiarism, not infringement of copyright.
2.On judicial plagiarism and the sanctions therefor
The majority Resolution quotes from the Judicial Opinion Writing Handbook written by Joyce George which I cited in my earlier Dissent
thusly:
The implicit right of judges to use legal materials regarded as belonging to the public domain is not unique to the Philippines. As Joyce
C. George, whom Justice Maria Lourdes Sereno cites in her dissenting opinion, observed in her Judicial Opinion Writing Handbook:
A judge writing to resolve a dispute, whether trial or appellate, is exempted from a charge of plagiarism even if ideas,
words or phrases from a law review article, novel thoughts published in a legal periodical or language from a party's brief
are used without giving attribution. Thus judges are free to use whatever sources they deem appropriate to resolve the
matter before them, without fear or reprisal. This exemption applies to judicial writings intended to decide cases for two
reasons: the judge is not writing a literary work and, more importantly, the purpose of the writing is to resolve a dispute.
As a result, judges adjudicating cases are not subject to a claim of legal plagiarism.
The use of this excerpt to justify the wholesale lifting of others' words without attribution as an "implicit right" is a serious misinterpretation of
the discussion from which the excerpt was taken. George wrote the above-quoted passage in the context of a nuanced analysis of possible
sanctions for judicial plagiarism, not in the context of the existence of plagiarism in judicial opinions. (I had candidly disclosed the existence of
this liberal view even in my 12 October 2010 Dissent.) The sections preceding the text from which this passage was taken are, in fact, discussions
of the following: ethical issues involving plagiarism in judicial writing, with regard to both the act of copying the work of another and the
implications of plagiarism on the act of adjudication; types of judicial plagiarism, the means by which they may be committed, and the venues in
and through which they can occur; and recent cases of judicial plagiarism. IHEDAT
In no wise does George imply that the judicial function confers upon judges the implicit right to use the writing of others without
attribution. Neither does George conflate the possible lack of sanctions for plagiarism with the issue of whether a determination of
judicial plagiarism can be made. Rather, George is careful to make the distinction between the issue of whether judicial plagiarism was
committed and the issue of whether a sanction can be imposed for an act of judicial plagiarism. In George's terminology, the latter issue may also
be framed as a question of whether judicial plagiarism is "subject to a claim of legal [that is, actionable] plagiarism", and it has no bearing
whatsoever on the former issue. Thus, George writes:
The intentional representation of another person's words, thoughts, or ideas as one's own without giving attribution is plagiarism.
"Judicial plagiarism" is the copying of words or ideas first written down by another judge, advocate, legal writer or commentator without
giving credit to the originator of that work. It can include such things as a judge's copying of another's judges opinion, the adoption
verbatim of an advocate's findings of fact and conclusions of law, the wholesale adoption of an advocate's brief, or the copying of a
portion of a law review article and representing it as the judge's own thoughts. The lack of attribution makes this activity "judicial
plagiarism," but without legal sanctions. 17
Indeed, my previous Dissent stated that inasmuch as sanctions for judicial plagiarism are concerned, "there is no strictly prevailing consensus
7/6/14, 3:36 PM
regarding the need or obligation to impose sanctions on judges who have committed judicial plagiarism." Yet the absence of a definite answer to
the question of liability does not grant judges carte blanche to use the work of others without attribution, willy-nilly, in their judicial opinions. As
George puts it, "the judge is ethically bound to give proper credit to law review articles, novel thoughts published in legal periodicals, newly
handed down decisions, or even a persuasive case from another jurisdiction." 18 Plainly, George is of the opinion that though a judge may not be
held liable for an act of judicial plagiarism, he should still attribute.
A note about "intentional representation." A careful reading of George's writing on judicial plagiarism will make it clear that she does not
consider "inadvertent" or "unintentional" plagiarism not plagiarism; indeed, she makes the distinction between "intentional" and "unintentional"
plagiarism several times, treating both as types of plagiarism:
Using another's language verbatim without using quotation marks or a block quote is intentional, as opposed to unintentional, plagiarism.
19
xxx xxx xxx
The lack of proper attribution may be unintentional and due to sloppy note taking, either by the law clerk or the judge. 20
xxx xxx xxx
Judicial plagiarism may also arise from the use of law clerks performing research and writing of draft decisions and who may not
accurately reflect the source. The plagiarized material may be included within the draft resulting from the law clerk's poor research skills.
21
xxx xxx xxx
The commission of unintended judicial plagiarism is unethical, but it is not sanctionable. 22
The intentional representation of which George speaks, then, may be considered as the intent to represent a work as one's own already
embodied in claiming a work by, for instance, affixing one's name or byline to it in which case the inadvertence, or lack thereof, by which
an act of plagiarism was committed is irrelevant to a finding of plagiarism.
While George is perhaps not as exacting in her valuation of the penalties for plagiarism as others may be, she still emphasizes that her view on
the exemption of judicial plagiarism from sanctions among which she evidently counts social stigma, censure, and ostracism does not
negate the judge's ethical obligation to attribute. She writes: EDCIcH
In conclusion, this author believes that a judicial writer cannot commit legal plagiarism because the purpose of his writing is not to create
a literary work but to dispose of a dispute between parties. Even so, a judge is ethically bound to give proper credit to law review articles,
novel thoughts published in legal periodicals, newly handed down decisions, or even a persuasive case from another jurisdiction. While
the judge may unwittingly use the language of a source without attribution, it is not proper even though he may be relieved of the stigma
of plagiarism. 23
As I wrote in my previous Dissent:
In so fulfilling her obligations, it may become imperative for the judge to use "the legal reasoning and language [of others e.g., a
supervising court or a law review article] for resolution of the dispute." [31] Although these obligations of the judicial writer must be
acknowledged, care should be taken to consider that said obligations do not negate the need for attribution so as to avoid the commission
of judicial plagiarism. Nor do said obligations diminish the fact that judicial plagiarism "detracts directly from the legitimacy of the
judge's ruling and indirectly from the judiciary's legitimacy" [32] or that it falls far short of the high ethical standards to which judges
must adhere [33]. 24
It must not be forgotten, however, that George's view tends toward the very liberal. There are other writings, and actual instances of the
imposition of sanctions, that reveal a more exacting view of the penalties merited by judicial plagiarism. 25
B.On the Countercharges Made by Justice Abad
In his Concurring Opinion in A.M. No. 10-7-17-SC, Justice Abad alleged that I myself have "lifted from works of others without proper
attribution," having written "them as an academician bound by the high standards" that I espouse.
Regarding this allegation, let us recall my Dissent promulgated on 12 October 2010. I stated:
Plagiarism thus does not consist solely of using the work of others in one's own work, but of the former in conjunction with the failure to
attribute said work to its rightful owner and thereby, as in the case of written work, misrepresenting the work of another as one's own. As
the work is another's and used without attribution, the plagiarist derives the benefit of use form the plagiarized work without expending
the requisite effort for the same at a cost (as in the concept of "opportunity cost") to its author who could otherwise have gained credit
for the work and whatever compensation for its use is deemed appropriate and necessary. 26 aATCDI
7/6/14, 3:36 PM
Allow me to analyze the allegations of Justice Robert C. Abad point by point using the same standard I propounded in my 12 October 2010
Dissent.
1.The alleged non-attribution to the Asian Development Bank's Country Governance Assessment Report for the Philippines (2005).
TABLE H: Comparison of Justice Abad's allegations, the 2001 and 2007 versions of the article co-authored with Drs. De Dios and Capuno,
and the ADB Country Governance Assessment of 2005.
REPRODUCTIONEXCERPT FROM THEEXCERPT FROM THE ADB
OF J. ABAD'SARTICLE CO-AUTHOREDCOUNTRY GOVERNANCE
ALLEGATIONSWITH DRS. DE DIOSASSESSMENT: PHILIPPINES
AND CAPUNO:
Justice and the Cost of Asian Development Bank
Doing Business: TheCountry Governance
Philippines, reportAssessment: Philippines,
submitted to the World2005.
Bank, 2001.
1.Cost refers to bothCosts, on the other hand,Cost refers to both
monetary and nonmonetaryrefer to both the monetarymonetary and nonmonetary
opportunities that a litigantand nonmonetaryopportunities that a litigant
has to forego in pursuing aopportunities that businesshas to forego in pursuing a
case. Direct cost refers notpeople forego as a result of case. Direct cost refers not
only to fees paid to themaking use of the judicialonly to fees paid to the
courts but also to out-of-system itself. Direct costs courts but also to out-of-
pocket costs arising fromrefer not only to the feespocket costs arising from
litigation itself (e.g.,paid the courts but also tolitigation itself (e.g.,
lawyers' fees andout-of-pocket costs arisinglawyer's fees and
compensation, transcriptfrom litigation itself (e.g.,compensation, transcript
fees for stenographic notes,lawyers' fees andfees for stenographic notes,
etc.). Indirect costs refer todocumentation). Indirect etc.). Indirect costs refer to
lost opportunities arisingcosts also inevitably arise, of lost opportunities arising
from delays in thewhich the most importantfrom delays in the
resolution of cases and theare those arising fromresolution of cases and the
time spent by a litigantdelays in the resolution of time spent by a litigant
attending and following upcases, and the failure toattending and following up
a case.come up with timelya case.
decisions.
[Asian Development Bank
Country Governance
Assessment (Philippines)
2005, page 103]
EXCERPT FROM THE
ARTICLE CO-AUTHORED
WITH DRS. DE DIOS
AND CAPUNO:
Justice and the Cost of
Doing Business: The
Philippines, UP School of
Economics Discussion
Paper 0711, October 2007.
Costs, on the other hand,
refer to both the monetary
and nonmonetary
opportunities that business
people forego as a result of
making use of the judicial
system itself. Direct costs
refer not only to the fees
paid the courts but also to
out-of-pocket costs arising
from litigation itself (e.g.,
lawyers' fees and
documentation). Indirect
costs also inevitably arise,
of which the most important
are those arising from
delays in the resolution of
cases, and the failure to
come up with timely
7/6/14, 3:36 PM
decisions.
Justice Abad accuses Dr. Emmanuel S. De Dios, Dr. Joseph J. Capuno, and me of copying, without attribution, three sentences from the Asian
Development Bank's 2005 Outlook Report for the Philippines, and incorporating them into our 2007 paper entitled "Justice and the Cost of
Doing Business." 27
I thank Justice Abad for alerting me to this particular ADB publication; otherwise I would not have noticed ADB's failure to attribute the same to
my co-authored work produced in 2001. Were it not for his charges, I would not have learned of such inadvertent error from the ADB. I have
thus called the attention of my co-authors, Drs. De Dios and Capuno, to this matter. Below is a reproduction of the contents of my letter to Drs.
De Dios and Capuno:
Hon. Maria Lourdes P.A. Sereno
Associate Justice
Supreme Court of the Philippines
February 4, 2011
Dr. Emmanuel C. De Dios
Dr. Joseph D. Capuno
School of Economics
University of the Philippines
Dear Drs. De Dios and Capuno
Greetings!
I have been recently alerted to a possible plagiarism that we are suspected to have committed with respect to the 2005 Asian
Development Bank Outlook Report, specifically three sentences in page 103 that reads:
. . . Cost refers to both monetary and nonmonetary opportunities that a litigant has to forego in pursuing a case. Direct cost refers
not only to fees paid to the courts but also to out-of-pocket costs arising from litigation itself (e.g., lawyer's fees and
compensation, transcript fees for stenographic notes, etc.) Indirect costs refer to lost opportunities arising from delays in the
resolution of cases and the time spent by a litigant attending and following up a case.
On examination, I discovered that it is the ADB that failed to attribute those sentences to the report we submitted in August 2001 to the
World Bank entitled "Justice and the Cost of Doing Business: The Philippines," specifically found in the third paragraph of our 2001
report. May I suggest that perhaps you could alert our friends at the ADB regarding the oversight. It would be nice if our small study, and
the World Bank support that made it possible, were appropriately recognized in this ADB publication. DcSACE
Warmest regards always.
Sincerely,
Maria Lourdes P.A. Sereno
A proper reading of the ADB publication will immediately convey the fact that the ADB considers one of my writings as a resource on the topic
of Philippine judicial reform. My name is quoted four (4) times in the text. A reading of the references listed one of my 2001 papers, which I
wrote singly as the source. Note the following references to my writing:
. . . It is incumbent upon the courts to harmonize these laws, and often they would find the absence of constitutional standards to guide
them (Sereno 2001). at page 98
xxx xxx xxx
. . . Critics pointed out that the Supreme Court should not have made factual declarations on whether a property belongs to the national
patrimony in the absence of an operative law by which a factual determination can be made (Sereno 2001). at page 99
. . . As Sereno pointed out, if this tension between the three branches is not resolved satisfactorily, it will create a climate of
unpredictability as a result of the following: at page 99
xxx xxx xxx
(iii)a court that will continually have to defend the exercise of its own powers against the criticism of the principal stakeholders in the
7/6/14, 3:36 PM
process of economic policy formulation: the executive and legislative branches and the constituencies consulted on the particular
economic issues at hand (Sereno 2001).
Had Justice Abad or his researcher taken the time to go through the ADB material, it would have been immediately apparent to either of them
that ADB was merely collating the thoughts of several authors on the subject of Philippine judicial reform, and that I was one of those considered
as a resource person. He would not then have presumed that I copied those sentences; rather, it might have struck him that more likely than not, it
was the ADB echoing the thoughts of one or some of the authors in the reference list when it used those quoted sentences, and that the pool of
authors being echoed by ADB includes me. The reference list of the ADB report with the relevant reference is quoted herein:
REFERENCES
xxx xxx xxx
Sereno, Ma. Lourdes. 2001. The Power of Judicial Review and Economic Policies: Achieving Constitutional Objectives. PHILJA-
AGILE-USAID Project on Law and Economics." at page 158.
What is more unfortunate is that I was immediately accused of having copied my sentences from ADB when a simple turn of the page after the
cover page of our 2007 paper would reveal that the 2007 paper is but a re-posting of our 2001 work. The notice on page 2 of the paper that is
found in the asterisked footnote of the title reads:
This paper was originally submitted in August 2001 as project report to the World Bank. During and since the time this report was
written, the Supreme Court was engaged in various projects in judicial reform. The authors are grateful to J. Edgardo Campos and Robert
Sherwood for stimulating ideas and encouragement but take responsibility for remaining errors and omissions. The Asian Institute of
Journalism and Communication provided excellent support to the study in the actual administration of the survey questionnaire and
conduct of focus group discussions.
This charge is made even more aggravating by the fact that the Supreme Court itself, through the Project Management Office, has a copy of my
2001 paper. In July 2003, a "Project Appraisal Document on a Proposed Loan in the Amount of US$21.9 Million to the Republic of the
Philippines for a Judicial Reform Support Project" was officially filed by the World Bank as Report No. 25504. 28 The applicant Supreme Court's
representative is named as Chief Justice Hilario Davide. The project leader is named as Evelyn Dumdum. The Report lists the technical papers
that form the basis for the reform program. Among the papers listed is our 2001 paper.
What is worse, from the point of view of research protocols, is that a simple internet search would have revealed that this 2001 co-authored paper
of mine has been internationally referred to at least four (4) times in three (3) English language publications and one (1) Japanese- or Chinese-
language publication; two of these are prior to the year 2005 when the relevant ADB Outlook Report came out. The authors of the English-
language works are all scholars on judicial reform, and they cite our work as one of the pioneering ones in terms of measuring the relationship
between dysfunctions in the judicial system and the cost to doing business of such dysfunctions. It would have then struck any researcher that in
all probability, the alleged plagiarized sentences originated from my co-authors and me. IDAESH
The references to my 2001 paper appear in the following international publications:
a)Sherwood, Robert. Judicial Performance: Its Economic Impact in Seven Countries; at page 20.
(http://www.molaah.com/Economic%20Realities/Judicial%20Performance.pdf)
b)Messick, Richard. Judicial Reform and Economic Growth: What a Decade of Experience Teaches; at pages 2 and 16. (2004).
http://www.cato.org/events/russianconf2004/papers/messick2.pdf
c)Herro, Alvaro and Henderson, Keith. Inter-American Development Bank. The Cost of Resolving Small-Business Conflicts in
Sustainable Development Department Best Practices Series; at page 46. (2004)
http://www.ifes.org/~/media/Files/Publications/White%20PaperReport/2003/258/SME_Peru_Report_final_EN.pdf
d)World Development Report 2005 (Japanese language); at page 235 (2005) ("url" in Japanese characters)
2.The purported non-attribution of the "Understanding on the Rules and Procedures Governing the Settlement of Disputes, Annex 2 to
the General Agreement on Tariffs and Trade 1994." 29
I will spare the reader the tedium of reading twenty pages of treaty rules and working procedures, and thus omit the three-column table I have
used in other sections of this Dissent. The rules and procedures may be accessed online at the following locations:
1.Marrakesh Declaration of 15 April 1994 <http://www.wto.org/english/docs_e/legal_e/marrakesh_decl_e.pdf> (Last accessed on 16

February 2011)
2.Understanding on Rules and Procedures Governing the Settlement of Disputes <http://www.wto.org/english/docs_e/legal_e/28-

dsu.pdf> (Last accessed on 16 February 2011)
3.Working Procedures for Appellate Review <http://www.wto.org/english/tratop_e/dispu_e/ab_e.htm#20> (Last accessed on 16 February
7/6/14, 3:36 PM
2011)
Justice Abad himself provides evidence of the attribution I made when he says:
Justice Sereno said that 'this section is drawn from Article XX and XXII of the GATT 1994, Understanding on Dispute Settlement and
Working Procedures.
I think the problem lies in the fact that neither Justice Abad nor his researcher is aware that the phrase "Understanding on Dispute Settlement" is
the short title for the "Understanding on the Rules and Procedures Governing the Settlement of Disputes", which is formally known also as
Annex 2 of the Marakkesh Agreement Establishing the World Trade Organization (short form of treaty name: WTO Treaty). A quick visit to the
WTO website will show that the WTO itself uses any of the terms "DSU," "Dispute Settlement Understanding" or "Understanding on Dispute
Settlement" (UDS) as short forms for the said Annex. The WTO webpage 30 shows that "Understanding on Dispute Settlement" is the first short
way they call the long set of rules covered by Annex 2 of the WTO Treaty.
More importantly, the WTO documents that were cited here are public international documents and rules governing the relations of states. In
page 6 of my article, "Toward the Formulation of a Philippine Position in Resolving Trade and Investment Dispute in APEC," I explain the
modes of resolving trade and investment disputes by APEC countries, and one of these modes is the WTO dispute settlement mechanism
governed by the WTO rules themselves. EISCaD
This is therefore a meaningless charge.
Assuming that Justice Abad knows that the above treaty titles are interchangeable, then his charge is akin to complaining of my supposed failure
for having simply written thus: "The following are the requirements for filing a complaint under the Rules of Court" and then for having
immediately discussed the requirements under the Rules of Court without quotation marks in reference to each specific rule and section. If this is
the case, then it appears that in Justice Abad's view I should have written: "the following are the requirements provided for under the 1997 Rules
of Civil Procedure (Bar Matter No. 803) for filing a complaint" and then used quotation marks every time reference to the law is made. Nothing
can be more awkward than requiring such a tedious way of explaining the Rules of Court requirements. I have made no such comparable charge
of violation against Justice del Castillo in the Dissent to the main Decision and I am not making any such claim of violation in my Dissent to the
Resolution denying the Motion for Reconsideration, because that would be a meaningless point.
Regarding the phrase allegedly coming from Professor Oppenheim on good offices and mediation, this is a trite, common, standard statement
with nothing original at all about it that can be found in any international dispute settlement reference book, including those that discuss WTO
dispute settlement systems. The phrase is a necessary, cut-and-dried statement on the use of good offices and mediation, which take place
alongside the formal dispute settlement system in major international dispute settlement systems. The system is provided for expressly in Article
5.5 and 5.6 of the DSU. A quick view of the WTO website makes this point very apparent. 31
3.The supposed non-attribution of a phrase from Baker v. Carr.

TABLE I: Comparison of Justice Abad's allegations, the legal memorandum in Province of North Cotabato v. Peace Panel, and the decision
of the U.S. Supreme Court in Baker v. Carr, cited in the legal memorandum.
REPRODUCTIONEXCERPT FROM THEEXCERPT FROM THE
OF J. ABAD'SLEGAL MEMORANDUMSOURCE CITED BY
ALLEGATIONSPREPARED BY J. SERENO:J. SERENO:
Petitioners-Intervenors'Baker v. Carr, 369 U.S.
Memorandum, Province of 186 (1962).
North Cotabato v. Peace
Panel
3.4 The power to determine
whether or not a
governmental act is a
political question, is solely
vested in this Court, and not
with the Respondents. This
Honorable Court had firmly
ruled that Article VIII,
Section 1 of the
Constitution, as rejected the
prudential approach taken
by courts as described in
Baker v. Carr. Indeed, it is a
duty, not discretion, of the
Supreme Court, to take
cognizance of a case and
exercise the power of
judicial review whenever a
7/6/14, 3:36 PM
grave abuse of discretion

has been prima facie
established, as in this
instance.
3.5 In this case,
Respondents cannot hide
under the political question
doctrine, for two compelling
reasons.
Prominent on the surface of 3.6 First, there is no resoluteProminent on the surface of
any case held to involve atextual commitment in theany case held to involve a
political question is found aConstitution that accords thepolitical question is found a
textually demonstrablePresident the power totextually demonstrable
constitutional commitmentnegotiate with the MILF . . .constitutional commitment
of the issue to a coordinateof the issue to a coordinate
political department; or axxx xxx xxxpolitical department; or a
lack of judiciallylack of judicially discoverable
discoverable and3.13 Second, there is no lackand manageable standards for
manageable standards forof a judicially discoverableresolving it; or the
resolving it; or theand manageable standard forimpossibility of deciding
impossibility of decidingresolving the question, norwithout an initial policy
without an initial policyimpossibility of deciding thedetermination of a kind clearly
determination of a kindquestion without an initialfor non-judicial discretion . . .
clearly for non-judicialpolicy determination of a
discretion . . .kind clearly for non-judicialSource cited:
discretion. On the contrary,
[Baker v. Carr, 169 U.S.the negotiating history withBaker v. Carr
186]Muslim secessionist groups
easily contradict any
pretense that this Court
cannot set down the
standards for what the
government cannot do
in this case.
(pp. 47-50 of the
Memorandum)
A simple upward glance nine paragraphs above the phrase that Justice Abad quoted from my post-hearing Memorandum in the GRP-MILF
MOA-AD case would show that Baker v. Carr was aptly cited. For quick reference, I have reproduced the pertinent parts of my legal
memorandum in the middle column of the above table. SECIcT
Baker v. Carr was discussed in the context of my argument that Marcos v. Manglapus has adopted a more liberal approach to the political
question jurisdictional defense, and has rejected the prudential approach taken in Baker v. Carr. The offending paragraph that Justice Abad
quoted was meant to demonstrate to the Court then hearing the GRP-MILF MOA-AD case that even if we apply Baker v. Carr, the Petition has
demonstrated satisfaction of its requirement: the presence of a judicially-discoverable standard for resolving the legal question before the Court.
Justice Abad's charge bears no similarity to the violations of the rules against plagiarism that I enumerated in pages 16 to 19 of my Dissent dated
12 October 2010. I have made no similar complaint against the work in Vinuya.
4.The alleged plagiarism of the internet-based World Trade Organization factsheet.

TABLE J: Comparison of Justice Abad's allegations, the article, entitled Uncertainties Beyond the Horizon: The Metamorphosis of the WTO
Investment Framework in the Philippine Setting, and the WTO Factsheet cited in the article.
OF J. ABAD'SWORK OF J. SERENO:SOURCE CITED BY
ALLEGATIONSJ. SERENO:
Sereno, Uncertaintieshttp://www.fas.usda.gov/info/
Beyond the Horizon: Thefactsheets/wto.html
Metamorphosis of the WTO
Investment Framework in
the Philippine Setting, 52
U.S.T. L. Rev. 259
(2007-2008)
This reticence, to link
investment regulation with
the legal disciplines in the
WTO, compared to the
eagerness with which other
7/6/14, 3:36 PM
issues are linked to trade

rules, was evident even in
the precursor to the
Marakkesh Agreement. 2
2 Marakkesh Agreement
established the World Trade
Organization and replaced
GATT as an international
organization. It was signed
by ministers from most of
the 123 participating
governments at a meeting in
Marrakesh, Morocco on
April 15, 1994 . . .Source cited:
The World TradeThe World TradeThe World Trade
Organization (WTO),Organization (WTO) wasOrganization (WTO),
established on January 1,established on January 1,established on January 1,
1995, is a multilateral1995. It is a multilateral1995, is a multilateral
institution charged withinstitution charged withinstitution charged with
administering rules foradministering rules for tradeadministering rules for
trade among memberamong member countries.trade among member
countries. Currently, thereThe WTO functions as thecountries. Currently, there
are 145 official memberprincipal international bodyare 145 official member
countries. The Unitedconcerned with multilateralcountries. The United
States and other countriesnegotiations on the reductionStates and other countries
participating in theof trade barriers and otherparticipating in the
Uruguay Round of measures that distortUruguay Round of
Multilateral Tradecompetition. The WTO alsoMultilateral Trade
Negotiations (1986-1994)serves as a platform forNegotiations (1986-1994)
called for the formation of countries to raise theircalled for the formation of
the WTO to embody theconcerns regarding thethe WTO to embody the
new trade disciplinestrade policies of theirnew trade disciplines
adopted during thosetrading partners. Theadopted during those
negotiations.basic aim of the WTO is tonegotiations.
liberalize world trade and
The WTO functions as theplace it on a secure basis,The WTO functions as the
principal international bodythereby contributing toprincipal international body
concerned with multilateraleconomic growth andconcerned with multilateral
negotiations on thedevelopment.negotiations on the reduction
reduction of trade barriershttp://www.fas.usda.gov/info/of trade barriers and other
and other measures thatfactsheets/wto.htmlmeasures that distort
distort competition. The(last accessed February 13,competition. The WTO also
WTO also serves as a2008). (Emphasis supplied.)serves as a platform for
platform for countries tocountries to raise their
raise their concernsconcerns regarding the trade
regarding the trade policiespolicies of their trading
of their trading partners.partners. The basic aim of
The basic aim of the WTOthe WTO is to liberalize
is to liberalize world tradeworld trade and place it
and place it on a secureon a secure basis, thereby
basis, thereby contributingcontributing to economic
to economic growth andgrowth and development.
development.
[WTO FACTSHEET(p. 260-261, footnote 2 of Source cited:
http://www.fas.usda.gov/J. Sereno's work)
info/factsheets/wto.html,http://www.fas.usda.gov/
last accessed Februaryinfo/factsheets/wto.html
13, 2008.]
Justice Abad has likewise pointed out that I made it appear that the description of the WTO in my article entitled "Uncertainties Beyond the
Horizon: The Metamorphosis of the WTO Investment Framework in the Philippine Setting" was my own original analysis. Again, a cursory
reading of the article will show that the paragraph in question was actually the second footnote in page 2 of the article. The footnote was made as
a background reference to the Marrakesh Agreement, which, as I explained earlier in the article, established the WTO. The footnote thus further
provided background information on the WTO. Contrary, however, to Justice Abad's allegation, I clearly attributed the source of the information
at the end of the footnote by providing the website source of this information and the date I accessed the information. Thus, should one decide to
follow the website that I cited, one would immediately see the information contained in the article was lifted from this direct source.
5.The purported non-attribution to Judge Richard A. Posner's seminal work in his book Economic Analysis of Law.
7/6/14, 3:36 PM
TABLE K: Comparison of Justice Abad's allegations, the article entitled Lawyers' Behavior and Judicial Decision-Making, and Judge
Richard A. Posner's book Economic Analysis of Law, cited in the article.
OF J. ABAD'SWORK OF J. SERENO:SOURCE CITED BY
ALLEGATIONSJ. SERENO:
Sereno, Lawyers' BehaviorRICHARD A. POSNER,
and Judicial Decision-ECONOMIC ANALYSIS
Making, 70 (4) PHIL. L. J.OF LAW, (2ND ED. 1977).
476 (1996).
. . . We could deal with this
problem later. What I would
propose to evaluate at this
point is the preconditions
that Judge Richard Posner
theorizes as dictating the
likelihood of litigating . . .
xxx xxx xxx
Posner's model is but a
simple mathematical
illustration or validation of
what we as laymen have
always believed to be true,
although how to prove it to
be true has always remained
a problem to us. We have
always known that the
decision on whether to settle
or not is dictated by the size
of the stakes in the eyes of
the parties, the costs of
litigation and the probability
which each side gives to his
winning or losing. But until
now, we have only been
intuitively dealing with a
formula for arriving at anAs with any contract, a
estimation of the "settlementnecessary (and usually
range" or its existence inwhy not always?
any given controversy.sufficient) conditions for
Simply, the settlement rangenegotiations to succeed is
is that range of prices inthat there be a price at
which both parties would bewhich both parties would
willing to settle because it feel that agreement would
would increase theirincrease their welfare.
[S]ettlement negotiationswelfare. SettlementHence settlement
will fail and litigationnegotiations will fail, andnegotiations should fail,
ensue, only if thelitigation will ensue, if theand litigation ensue, only if
minimum price that theminimum price that plaintiff the minimum price that the
plaintiff is willing tois willing to accept inplaintiff is willing to accept
accept in compromise of compromise of his claim isin compromise of his claim
his claim is greater thangreater than the maximumis greater than the maximum
the maximum price theprice that the defendant isprice that the defendant is
defendant is willing towilling to pay in satisfactionwilling to pay in satisfaction
pay in satisfaction of theof that claim.of that claim; . . .
claim.
[Posner, p. 434](pp. 481-483 of Lawyers'Source cited:
Behavior and Judicial
Decision-Making)RICHARD A. POSNER,
ECONOMIC ANALYSIS
OF LAW, 435 (2ND ED.
1977).
WHAT THE JUDGE19.7 WHAT DO JUDGES
MAXIMIZESMAXIMIZE?
. . . This section attempts to
sketch a theory of judicial
incentives that will reconcile
In understanding judicialthese assumptions.
7/6/14, 3:36 PM
behavior, we have to
assume, that judges, like allPresumably judges, like the
Presumably judges, like economic actors maximize arest of us, seek to maximize
the rest of us, seek to utility function. Thisa utility function that
maximize a utility functionfunction in all probabilityincludes both monetary and
that includes both monetaryincludes material as well asnonmonetary elements (the
and nonmonetary elements.non-material factors. Inlatter including leisure,
American literature, theyprestige, and power). As
have come up with severalnoted earlier, however, the
[Posner, p. 415]theories on what judgesrules of the judicial process
maximize.have been carefully
designed both to prevent
The first is that thethe judge from receiving a
American judicial systemmonetary payoff from
[T]he rules of the judicialhave rules designed todeciding a particular case
process have been carefullyminimize the possibilities of one way or the other and to
designed both to thea judge maximizing hisminimize the influence of
prevent the judge fromfinancial interest bypolitically effective interest
receiving a monetaryreceiving a bribe from agroups on his decisions. To
payoff from deciding alitigant of from acceding tobe sure, the effectiveness of
particular case one way or a politically powerfulthese insulating rules is
the other and to minimizeinterest group by makingsometimes questioned. It is
the influence of politicallythe rules work in such aoften argued, for example,
effective interest group inmanner as to createthat the judge who owns
his decisions.disincentives for the judgeland will decide in favor of
ruling in such a manner.landowners, the judge who
[Posner, 415]walks to work in favor of
The second, proceedingpedestrians, the judge who
from the first is that theused to be a corporate
judge maximizes the interestlawyer in favor of
It is often argued, for of the group to which hecorporations . . .
example, that the judge belongs. If he belongs to the
who owns land will decidelandowning class, he willA somewhat more plausible
in favor of landowners,generally favor landowners,case can be made that
the judge who walks toand if he walks to work, hejudges might slant their
work will be in favour of will generally favordecisions in favor of
pedestrians.pedestrians.powerful interest groups in
order to increase the
[Posner, 415]prospects of promotion to
The third is that the judgehigher office, judicial or
maximizes the prospects of otherwise . . .
his promotion to a higher
A somewhat more plausibleoffice by slanting hisIt would seem, therefore,
case can be made that decisions in favor of that the explanation for
judges might slant theirpowerful interest groups.judicial behavior must lie
decisions in favour of elsewhere than in pecuniary
powerful interest groupsor political factors. That
in order to increase the most judges are leisure
prospects of promotion tomaximizers is an
higher office, judicial orassumption that will not
otherwise.survive even casual
The last is that judgesobservation of judicial
[Posner, p. 416]maximize their influence onbehavior. A more attractive
society by imposing theirpossibility, yet still one
values, tastes andthoroughly consistent with
[J]udges seek to imposepreferences thereon.the ordinary assumptions of
their preferences, tastes,economic analysis, is that
values, etc. on society.Depending on one'sjudges seek to impose their
impressions and experiencespreferences, tastes, values
[Posner, 416](since there is no empiricaletc. on society . . .
data on which a more
scientific conclusion can be
reached on which of the
above four theories are
correct), we can see the
relation of this utility-
maximizing behavior on
both our probability estimate
function and Posner's
precondition inequality for
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litigation. Although more

research is required in this
area, if we believe Posner's
function to be true . . .
(Emphasis supplied.)
(pp. 489 of Lawyers' Source:
Behavior and Judicial
Decision-Making)RICHARD A. POSNER,
ECONOMIC ANALYSIS OF
LAW, 415-16 (2ND ED.
1977).
May I invite the reader to read my entire article entitled "Lawyers' Behavior and Judicial Decision-Making," accessible online at
<http://law.upd.edu.ph/plj/images/files/PLJ%20volume%2070/PLJ%20volume%2070%20number%204%20-02-
%20Ma.%20Lourdes%20A.%20Sereno%20-%20Lawyers%20Behavior.pdf>, so that the alleged copying of words can be taken in the proper
context. CTSAaH
It must first be emphasized that the whole article was largely a presentation and discussion of Judge Posner's economic models of litigation and
settlement, applying what he had written to the context of the Philippines. An examination of the article will show that Posner's work was
referred to no less than fourteen (14) times throughout the article, excluding the use of pronouns that also refer to Posner, such as "he" and "him."
A diligent reading of the full text of the article will reveal that I have intentionally and heavily used Posner's opinions, analyses, models, and
conclusions while crediting him with the same.
Furthermore, the passages cited in the table of counter-charges use what one may call the "terms of the trade" in the field of law and economics,
or indeed in the field of economics itself. The maximization of an individual's utility is one of the core principles on which the study of an
individual's choices and actions are based. The condition for the success/failure of settlement bargaining is practically a definition, as it is also a
fundamental principle in the study of bargaining and negotiation that the minimum price of one of the parties must not exceed the maximum
price the other party is willing to pay; that particular passage, indeed, may be regarded as a re-statement, in words instead of numbers, of a
fundamental mathematical condition as it appears in Posner's model and in many similar models.
To allow industry professionals to have their say on the matter, I have written a letter to Dr. Arsenio M. Balisacan, the Dean of the University of
the Philippines School of Economics, requesting that my paper, Lawyers' Behavior and Judicial Decision-Making, be examined by experts in the
field to determine whether the allegations of plagiarism leveled against me have basis. I am reproducing the contents of the letter below.
Hon. Maria Lourdes P.A. Sereno
Associate Justice
Supreme Court of the Philippines
February 11, 2011
Dr. Arsenio M. Balisacan
Dean
School of Economics
University of the Philippines
Dear Dr. Balisacan:
Greetings! I hope this letter finds you in the best of health.
I write because I have a request to make of your highly-respected institution. I have been recently accused of plagiarizing the work of
Judge Richard Posner in one of the articles on law and economics that I have written and that was published in the Philippine Law
Journal entitled "Lawyers' Behavior and Judicial Decision-Making", 70 Phil. L. J. 475-492 (June 1996). The work of Posner that I am
accused of having plagiarized is the second edition of the book entitled "Economic Analysis of Law", published in 1977 by Little, Brown
and Company.
May I ask you for help in this respect I wish to submit my work to the evaluation of your esteemed professors in the UP School of
Economics. My work as an academic has been attacked and I would wish very much for a statement from a panel of your choosing to
give its word on my work.
I am attaching a table showing which part of Posner's work I am alleged to have plagiarized in my Philippine Law Journal article.
7/6/14, 3:36 PM
Thank you very much. I will be much obliged for this kind favor. HcDaAI
Very truly yours,
Maria Lourdes P.A. Sereno
The problem with the majority approach is that it refuses to face the scale of the plagiarism in the Vinuya Decision. If only that were the starting
point for the analysis of the majority, then some of my colleagues would not have formed the impression that I was castigating or moralizing the
majority. No court can lightly regard a ponencia, as in Vinuya, where around 53% of the words used for an important section were plagiarized
from sources of original scholarship. Judges and their legal researchers are not being asked to be academics; only to be diligent and honest.
IV.The Role of the Judiciary in Society
On more than one occasion, this Court has referred to one of its functions as the symbolic or educative function, the competence to formulate
guiding principles that may enlighten the bench and the bar, and the public in general. 32 It cannot now backpedal from the high standards
inherent in the judicial role, or from the standards it has set for itself.
The need to cement ethical standards for judges and justices is intertwined with the democratic process. As Lebovits explained:
The judiciary's power comes from its words alone judges command no army and control no purse. In a democracy, judges
have legitimacy only when their words deserve respect, and their words deserve respect only when those who utter them are
ethical. Opinion writing is public writing of the highest order; people are affected not only by judicial opinions but also by how
they are written. Therefore, judges and the opinions they write opinions scrutinized by litigants, attorneys, other judges, and
the public are held, and must be held, to high ethical standards. Ethics must constrain every aspect of the judicial opinion. 33
Justice George Rose Smith once pointed to the democratic process as a reason to write opinions: "Above all else to expose the court's
decision to public scrutiny, to nail it up on the wall for all to see. In no other way can it be known whether the law needs revision,
whether the court is doing its job, whether a particular judge is competent." Justice Smith recognized that judges are not untouchable
beings. Judges serve their audience. With this service comes the need for judges to be trusted. Writing opinions makes obtaining trust
easier; it allows an often opaque judicial institution to become transparent. 34
Judges cannot evade the provisions in the Code of Judicial Conduct. 35

A judge should participate in establishing, maintaining and enforcing high standards of conduct, and shall personally observe those
standards so that the integrity and independence of the judiciary will be preserved. The drafters of the Model Code were aware that to be
effective, the judiciary must maintain legitimacy and to maintain legitimacy, judges must live up to the Model Code's moral standards
when writing opinions. If the public is able to witness or infer from judges' writing that judges resolve disputes morally, the public will
likewise be confident of judges' ability to resolve disputes fairly and justly. 36 (Citations omitted)
Canon 1 of the Code of Judicial Conduct states that a judge should uphold the integrity and independence of the judiciary. Rule 1.01 in particular
states that a judge should be the embodiment of competence, integrity, and independence.
Canon 3 then focuses on the duty of honesty in the performance of official duties, as well as on the supervision of court personnel:
Rule 3.09.A judge should organize and supervise the court personnel to ensure the prompt and efficient dispatch of business, and require
at all times the observance of high standards of public service and fidelity.
Rule 3.10.A judge should take or initiate appropriate disciplinary measures against lawyers or court personnel for unprofessional conduct
of which the judge may have become aware.
Paragraph 17 of the Code of Judicial Ethics 37 focuses on the writing of judicial opinions: IEHSDA
In disposing of controversial cases, judges should indicate the reasons for their action in opinions showing that they have not disregarded
or overlooked serious arguments of counsel. They should show their full understanding of the case, avoid the suspicion of arbitrary
conclusion, promote confidence in their intellectual integrity and contribute useful precedents to the growth of the law. (Emphasis
supplied)
Paragraph 31, "a summary of judicial obligations," contains a more general statement regarding the behavioral norms required of judges and
justices alike, stating:
A judge's conduct should be above reproach and in the discharge of his judicial duties, he should be conscientious, studious, thorough,
courteous, patient, punctual, just, impartial, fearless of public clamor, and regardless of private influence should administer justice
according to law and should deal with the patronage of the position as a public trust; and he should not allow outside matters or his
private interests to interfere with the prompt and proper performance of his office.
That judges and justices alike are subject to higher standards by virtue of their office has been repeatedly pronounced by the Supreme Court:
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Concerned with safeguarding the integrity of the judiciary, this Court has come down hard and wielded the rod of discipline against
members of the judiciary who have fallen short of the exacting standards of judicial conduct. This is because a judge is the visible
representation of the law and of justice. He must comport himself in a manner that his conduct must be free of a whiff of impropriety, not
only with respect to the performance of his official duties but also as to his behavior outside his sala and as a private individual. His
character must be able to withstand the most searching public scrutiny because the ethical principles and sense of propriety of a judge are
essential to the preservation of the people's faith in the judicial system. 38
Thus, being the subject of constant public scrutiny, a judge should freely and willingly accept restrictions on conduct that might be viewed as
burdensome by the ordinary citizen. 39 A judge should personify integrity and exemplify honest public service. The personal behavior of a judge,
both in the performance of his official duties and in private life should be above suspicion. 40 Concerned with safeguarding the integrity of the
judiciary, this Court has come down hard on erring judges and imposed the concomitant punishment. 41
As held by the Court in Teban Hardware and Auto Supply Co. v. Tapucar: 42
The personal and official actuations of every member of the Bench must be beyond reproach and above suspicion. The faith and
confidence of the public in the administration of justice cannot be maintained if a Judge who dispenses it is not equipped with the cardinal
judicial virtue of moral integrity, and if he obtusely continues to commit an affront to public decency. In fact, moral integrity is more than
a virtue; it is a necessity in the Judiciary.
The inherent value of judicial decisions goes beyond the resolution of dispute between two parties. From the perspective of the judge, he has
fulfilled his minimum burden when he has disposed of the case. Yet from the perspective of the public, it is only through publicized decisions that
the public experiences the nearest approximation of a democratic experience from the third branch of Government.
Decisions and opinions of a court are of course matters of public concern or interest for these are the authorized expositions and
interpretations of the laws, binding upon all citizens, of which every citizen is charged with knowledge. Justice thus requires that all
should have free access to the opinions of judges and justices, and it would be against sound public policy to prevent, suppress or
keep the earliest knowledge of these from the public. 43
The clearest manifestation of adherence to these standards is through a Justice's written opinions. In the democratic framework, it is the only way
by which the public can check the performance of such public officer's obligations. Plagiarism in judicial opinions detracts directly from the
legitimacy of the judge's ruling and indirectly from the judiciary's legitimacy. 44 It is objectionable not only because of its inherent capacity to
harm, but the overarching damage it wreaks on the dignity of the Court as a whole.
The Court's Educative Function
The Court's first Decision in this case hinged on the difference between the academic publishing model on the one hand, and the judicial system
on the other. It proceeded to conclude that courts are encouraged to cite "historical legal data, precedents, and related studies" in their decisions,
so that "the judge is not expected to produce original scholarship in every respect." ITESAc
This argument presents a narrower view of the role of the courts than what this country's history consistently reveals: the judiciary plays a more
creative role than just traditional scholarship. No matter how hesitantly it assumes this duty and burden, the courts have become moral guideposts
in the eyes of the public.
Easily the most daunting task which confronts a newly appointed judge is how to write decisions. It is truly a formidable challenge
considering the impact of a court's judgment reverberates throughout the community in which it is rendered, affecting issues of life,
liberty, and property in ways that are more pervasive and penetrating than what usually appears on the surface or under it. 45
The impact of judicial decisions has even been codified in paragraph 2 of the Canon of Judicial Ethics: "Every judge should at all times be alert
in his rulings and in the conduct of the business of his court, so far as he can, to make it useful to litigants and to the community."
The error in the contention of the majority that judicial writing does not put a premium on originality is evident. In the words of Daniel Farber,
stare decisis has become an oft-repeated catchphrase to justify an unfounded predisposition to repeating maxims and doctrines devoid of renewed
evaluation.
In reviewing the Court's work, we saw a fixation on verbal formulas; likewise, race scholarship frequently seems to suffer from a similar
fixation on stylized rhetoric. Yet Holmes' adage defines the problem a bit too narrowly suggesting that we mostly need less abstraction
and more concreteness. This deficiency actually is part of the problem; we could surely benefit from more empirical research and
sensitivity to concrete factual situations. Yet, the problem goes beyond that. 46
The consistent resort to stare decisis fails to take into account that in the exercise of the Court's self-proclaimed symbolic function, its first
accountability is to its audience: the public. Its duty of guiding the bench and the bar comes a close second.
Consider first the judge. A key weakness of current Supreme Court opinions seems to be that judges have sometimes lost track of whom
they are addressing or what they are trying to accomplish. Of course, they have no literal clients, but they seek to advance a set of values
and perspectives that might serve as the basis for identifying metaphorical clients . . . The purpose, then, is to help the system work as
7/6/14, 3:36 PM
well as possible according to its own norms and goals . . .
Often, the purpose is to guide other courts to advance the client's interests in their own decisions. In this respect, the important part of the
opinion is that portion speaking to future cases though as we have seen, judges sometimes fail to focus their energies there.
Additionally, the opinion, if it is to elicit more than the most grudging obedience, must appeal to the values and goals of those judges as
well as to the author's. 47
The Court seemingly views the issuance of opinions to be an end in itself, as if the text of the opinion had some autonomous value
unrelated to its ability to communicate to an audience. At a deeper level, the intellectual flaw in the statutory-interpretation
opinions is similar. The Court often treats statutes as free-standing texts, with little attention to their historical and social contexts
or what their drafters were trying to achieve. 48
Thus, the value of ethical judicial writing vis--vis the role that courts are called upon to play cannot be underestimated.
Worrying about the ethical status of judicial opinions seems pointless at first. Complaints about decisions and the opinions that explain
them have been around as long as judges have been judging. As technology has lowered the cost of research, and of cutting and pasting
earlier work, opinions often seem to be formal exercises that do not suggest deep judicial engagement. Other opinions do show the hand
of a deeply engaged judge, though these can be worse than the cut-and-pasted kind. What then is to be gained by trying to make an
ethical issue of judicial writing? . . . Professor Llewellyn said it is in part because the judicial office acts as "a subduer of self and self-
will, as an engine to promote openness to listen and to understand, to quicken evenhandedness, patience, sustained effort to see
and judge for All-of-Us." 49 THAECc
The lessons taught our country by its singular experience in history has given rise to a more defined place for our courts. With the constitutional
mandate that the Supreme Court alone can exercise judicial review, or promulgate rules and guidelines for the bench and the bar, or act as the
arbiter between the two branches of government, it is all the more evident that standards for judicial behavior must be formulated. After all, "the
most significant aspect of the court's work may lie in just this method and process of decision: by avoiding absolutes, by testing general maxims
against concrete particulars, by deciding only in the context of specific controversies, by finding accommodations between polar principles, by
holding itself open to the reconsideration of dogma, the court at its best, provides a symbol of reconciliation." 50
According to Paul Freund, the great fundamental guarantees of our Constitution are in fact, moral standards wrapped in legal commands. It is
only fitting that the Court, in taking on the role of a public conscience, accept the fact that the people expect nothing less from it than the best of
faith and effort in adhering to high ethical standards.
I affirm my response to the dispositive portion of the majority Decision in this case as stated in my Dissent of 12 October 2010, with the
modification that more work of more authors must be appropriately acknowledged, apologies must be extended, and a more extensively corrected
Corrigendum must be issued. Again, I make no pronouncement on liability, not only because the process was erroneously cut short by the
majority when it refused to proceed to the next step of determining the duty of diligence that a judge has in supervising the work of his legal
research, and whether, in this instance, Justice del Castillo discharged such duty, but also because of the view expressed by Justice Carpio that
this Court had best leave the matter of clearing Justice del Castillo to Congress, the body designated by the Constitution for such matters. It
seems now that the process of determining the degree of care required in this case may never be undertaken by this Court. One thing is certain,
however: we cannot allow a heavily plagiarized Decision to remain in our casebooks it must be corrected. The issues are very clear to the
general public. A wrong must be righted, and this Court must move forward in the right direction.
Footnotes
1.April 28, 2010.
2.Black's Law Dictionary (8th Edition, 2004).
3.Available at http://www.admu.edu.ph/index.php?p=120&type=2&sec=25&aid=9149.
4.In the Matter of the Charges of Plagiarism, etc., Against Associate Justice Mariano C. Del Castillo, A.M. No. 10-7-17-SC, October 12, 2010.
5.Webster's Third New International Dictionary, p. 2374.
6.Black's Law Dictionary (6th Edition, 1990), p. 1406.
7.Duncan Webb, Plagiarism: A Threat to Lawyers' Integrity? Published by the International Bar Association, available online at
http://www.ibanet.org/Article/Detail.aspx?ArticleUid=bc2ef7cd-3207-43d6-9e87-16c3bc2be595.
8.Joyce C. George, Judicial Opinion Writing Handbook (2007), p. 725, cited by Justice Maria Lourdes Sereno in her dissenting opinion.
9.Supra note 7.
7/6/14, 3:36 PM
10.G.R. No. 190582, April 8, 2010.
CARPIO, J., dissenting:
1.Part IV, Intellectual Property Decree (Republic Act No. 8293).
2.Volume II, Records of the Constitutional Commission, p. 272. The following exchange took place during the deliberations of the Constitutional
Commission:
MR. REGALADO: Thank you, Madam President.
xxx xxx xxx
First, this is with respect to Section 2, on the grounds for impeachment, and I quote:
. . . culpable violation of the Constitution, treason, bribery, other high crimes, graft and corruption or betrayal of public trust.
Just for the record, what would the Committee envision as a betrayal of the public trust which is not otherwise covered by the other terms antecedent
thereto?
MR. ROMULO: I think, if I may speak for the Committee and subject to further comments of Commissioner de los Reyes, the concept is that this is a
catchall phrase. Really, it refers to his oath of office, in the end that the idea of a public trust is connected with the oath of office of the officer,
and if he violates that oath of office, then he has betrayed that trust.
MR. REGALADO: Thank you.
MR. MONSOD: Madam President, may I ask Commissioner de los Reyes to perhaps add to those remarks.
THE PRESIDENT: Commissioner de los Reyes is recognized.
MR. DE LOS REYES: The reason I proposed this amendment is that during the Regular Batasang Pambansa when there was a move to impeach then
President Marcos, there were arguments to the effect that there is no ground for impeachment because there is no proof that President Marcos
committed criminal acts which are punishable, or considered penal offenses. And so the term "betrayal of public trust," as explained by
Commissioner Romulo, is a catchall phrase to include all acts which are not punishable by statutes as penal offenses but, nonetheless,
render the officer unfit to continue in office. It includes betrayal of public interest, inexcusable negligence of duty, tyrannical abuse of
power, breach of official duty by malfeasance or misfeasance cronyism, favoritism, etc. to the prejudice of public interest and which tend
to bring the office into disrepute. That is the purpose, Madam President. Thank you.
MR. ROMULO: If I may add another example, because Commissioner Regalado asked a very good question. This concept would include, I think,
obstruction of justice since in his oath he swears to do justice to every man; so if he does anything that obstructs justice, it could be construed as
a betrayal of the public trust. Thank you. (Emphasis supplied)
3.The 1993 Report of the National Commission on Judicial Discipline & Removal of the United States (http://judicial-discipline-
reform.org/judicial_complaints/1993_Report_Removal.pdf, pp. 17-18) concluded that impeachment is the exclusive mode of removing federal
judges from office, thus:
Nevertheless, the Commission concludes that Congress may not provide for removal as a criminal penalty. If removal may lawfully follow on conviction
for a federal judge, then it may do so for the Vice President of the United States or perhaps even the President. But if the constitutional grant of a
term of office to the Vice President and President prevails against any provision for removal in the criminal law, the same should be true of the
tenure the Constitution grants to judges. The Constitution quite explicitly separates impeachment and removal from the ordinary criminal
process. The Commission does not believe that Congress's power to punish crimes is an exception to judicial life tenure, or alternatively a way in
which good behavior may be inquired into, in the way that the impeachment process clearly is.
xxx xxx xxx
The Commission concludes that a statute providing for the removal from office of judges who serve on good behavior under Article III by means other
than impeachment and conviction would be unconstitutional. (Emphasis supplied; citations omitted)
4.Section 3 (7), Article XI of the Constitution provides: "Judgment in cases of impeachment shall not extend further than removal from office and
disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to
prosecution, trial, and punishment according to law."
5.There are those who, with good reason, believe that removal from office is the maximum penalty in impeachment and thus there can be lesser penalties
like censure. See Joseph Isenbergh, Impeachment and Presidential Immunity from Judicial Process, 18 Yale Law & Policy Review 53 (1999).
6.See note 4.
7.Professor Laurence H. Tribe writes: "The independence of the process of impeachment and criminal prosecution is highlighted by the case of Judge
Alcee Hastings, who was acquitted of bribery by a federal jury in 1983, but was subsequently impeached by the House and convicted by the
7/6/14, 3:36 PM
Senate for the same offense and for testifying falsely about it under oath at his federal criminal trial. Similarly, Judge Walter Nixon was
impeached by the House and convicted by the Senate in 1989 for falsely testifying under oath before a federal grand jury investigating Judge
Nixon's improper discussions with a state prosecutor in a case involving a business acquaintance's son, despite an earlier acquittal in a federal
prosecution for bribery arising out of those very events. And, although this precise sequence is not addressed by Article I, Section 3, clause 7, it
should also be possible for an official to be acquitted by the Senate in an impeachment trial but subsequently convicted of the same underlying
acts in a federal court. The Senate's acquittal, after all, could well represent a determination merely that the charged offenses were not
impeachable, or that the nation would be harmed more than protected by pronouncing the official guilty." American Constitutional Law, Volume
1 (3rd edition), pp. 159-160.
8.An author whose moral rights under the Law on Copyright are infringed by a judge in his judicial decision may file a civil case in court against such
judge. See discussion on The Judge Must Follow the Law on Copyright, infra.
9.Quoting Black's Law Dictionary.
10.Volume I, Records of the Constitutional Commission, pp. 456-457.
11.Approved by the En Banc on 15 November 2005.
12.Part IV of RA No. 8293, otherwise known as the "Intellectual Property Code of the Philippines."
13.Section 176 of RA No. 8293 provides: "Works of the Government. No copyright shall subsist in any work of the Government of the Philippines. . . . ."
14.Canon 3 of the Code of Judicial Conduct provides: "A judge should perform official duties honestly, and with impartiality and diligence."
15.Rule 3.01 of the Code of Judicial Conduct provides: "A judge shall be faithful to the law and maintain professional competence."
16.Rule 3.02 of the Code of Judicial Conduct provides: "In every case, a judge shall endeavour diligently to ascertain the facts and the applicable law,
unswayed by partisan interests, public opinion or fear of criticism."
17.Section 184 (k) of RA No. 8293 provides: "Limitations on Copyright. 184.1. Notwithstanding the provisions of Chapter V [on copyright and
economic rights], the following acts shall not constitute infringement of copyright:
(a) . . .
xxx xxx xxx
(k) Any use made of a work for the purpose of any judicial proceedings or for the giving of professional advice by a legal practitioner."
18.Section 173.1 (b), Intellectual Property Code.
19.Section 198.1 of the Intellectual Property Code provides that the "[moral] rights of an author . . . shall not be assignable or subject to license."
20.Section 119, Intellectual Property Code.
21.Roger E. Schechter and John R. Thomas, Intellectual Property (2003), p. 19.
22.Vicente B. Amador, Copyright under the Intellectual Property Code (1998), p. 570.
23.Id. p. 569, citing John Carter, John Swing and John Veronis v. Helmsley-Spear, Inc. and Associates, U.S. Court of Appeals for 2nd Circuit, 1
December 1995.
24.Article 8 of the Civil Code provides: "Judicial decisions applying or interpreting the laws or the Constitution shall form part of the legal system of the
Philippines."
25.In the Matter of Hon. Thomas E. Brennan, Jr., Judge, 55th District, Mason, Michigan, 433 Mich. 1204, 447 N.W.2d 712 (6 November 1989). In this
case, Judge Brennan, Jr. submitted an article to a law review for publication. The article failed to acknowledge several passages copied from law
journal articles of two other authors. The Michigan Judicial Tenure Commission recommended to the Supreme Court of Michigan that Judge
Brennan, Jr. be publicly censured for misconduct. Interestingly, Judge Brennan, Jr. (a state judge) admitted his misconduct and made the
following manifestation:
Respondent Thomas E. Brennan, Jr., of the 55th District Court, Ingham County, Michigan, acknowledges notice and receipt of the Judicial Tenure
Commission's Decision and Recommendation for Order of Discipline dated September 12, 1989, and stipulates to the Judicial Tenure
Commission's findings as recited in paragraphs one (1) through six (6) thereof;
Respondent further affirmatively acknowledges the impropriety of his conduct as set forth in the Decision and Recommendation for Order of
Discipline, and pursuant to MCR 9.221 (C), consents to the Commission's recommendation that he be publicly censured.
Respondent further concurs in the request of the Judicial Tenure Commission that an order embodying the foregoing disciplinary action be entered
immediately by the Michigan Supreme Court. (Emphasis supplied)
7/6/14, 3:36 PM
CARPIO MORALES, J., dissenting:
1.CONSTITUTION, Art. XI, Sec. 2.
2.Cuenco v. Fernan, Adm. Case No. 3135, February 17, 1988, 158 SCRA 29; vide also the Resolution of April 15, 1988 (160 SCRA 778) where the
complainant was severely reprimanded and warned.
3.A.M. No. 88-4-5433, April 15, 1988, 160 SCRA 771.
4.Id. at 774.
5.Id. at 776-777.
6.A.C. No. 4509, December 5, 1995, 250 SCRA xi.
7.Office of the Ombudsman v. Court of Appeals, G.R. No. 146486, March 4, 2005, 452 SCRA 714, 734-735.
8.In discussing the word "incapacitated," Bernas said that the power to determine incapacity is part of the overall administrative power which the
Supreme Court has over its members and over all members of the judiciary [Bernas, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE
PHILIPPINES: A COMMENTARY (2003), p. 988].
9.A.M. No. 10-4-20-SC (May 4, 2010).
10.Id., Rule 2, Sec. 3, par. (h).
11.This framework of constitutional law likewise explains why incumbent Justices of the Supreme Court, by virtue of their being impeachable officers,
are not included from the operation of A.M. No. 02-9-02-SC on the "Automatic Conversion of Some Administrative Cases Against Justices of
the Court of Appeals and the Sandiganbayan, Judges of Regular and Special Courts, and Court Officials Who Are Lawyers as Disciplinary
Proceedings Against Them Both as Officials and as Members of the Philippine Bar" (September 17, 2002). The rule provides that when the said
administrative case is based on grounds which are likewise grounds for a disciplinary action of members of the Bar, the administrative case shall
also be considered a disciplinary action against the respondent justice, judge or court official concerned as a member of the Bar [as applied in
Avancena v. Liwanag, A.M. No. MTJ-01-1383, March 5, 2003, 398 SCRA 541 and July 17, 2003, 406 SCRA 300 where the judge was dismissed
from service and disbarred from the practice of law. See also Juan de la Cruz (Concerned Citizen of Legazpi City) v. Carretas, A.M. No. RTJ-07-
2043, September 5, 2007, 532 SCRA 218; Caada v. Suerte, A.M. No. RTJ-04-1884, February 22, 2008, 546 SCRA 414]. Its application to a
particular administrative action is not dependent on the date of commission of the offense but on the date of filing of the case. There is no
automatic conversion when the administrative case was filed before October 1, 2002 or prior to the date of effectivity of A.M. No. 02-9-02-SC
(vide Office of the Court Administrator v. Morante, A.M. No. P-02-1555, April 16, 2004, 428 SCRA 1, 35-36; J. King and Sons Company, Inc. v.
Hontanosas, Jr., A.M. No. RTJ-03-1802, February 28, 2006 Resolution) and the respondent has already been required to comment on the
complaint (Heck v. Santos, A.M. No. RTJ-01-1657, 23 February 2004, 423 SCRA 329, 341).
12.A.M. No. 09-2-19-SC, February 24, 2009, 580 SCRA 106.
13.Id. at 164.
14.Id. The Court explained:
Liability of Atty. Rosendo B. Evangelista
The Committee finds that Atty. Evangelista, Justice Reyes' Judicial Staff Head, was remiss in his duties, which includes the supervision of the operations
of the office, particularly with respect to the promulgation of decisions. While it is incumbent upon him to devise ways and means to secure the
integrity of confidential documents, his actuations reflected above evinced "a disregard of a duty resulting from carelessness or indifference."
Atty. Evangelista was admittedly unmindful of the responsible safekeeping of draft ponencias in an unlocked drawer of a member of the staff. He failed
to make sure that the unused portion of confidential documents like the second signatory page of the ponencia in Gilbert form had been properly
disposed of or shredded. He was not on top of things that concerned the promulgation of ponencias, for he failed to ascertain the status and
procedural implication of an "on hold" order after having been apprised thereof by his subordinate, Del Rosario, on July 17, 2008. Despite his
awareness that the Limkaichong case would eventually be called again, he admitted that he was not privy to the preparation of the copy of the
ponencia for the subsequent session on July 29, 2008.
With these findings, the Court finds him liable for SIMPLE NEGLECT OF DUTY.
Liability of Armando Del Rosario
The committee likewise finds Del Rosario administratively liable for failing to exercise the required degree of care in the custody of the Gilbert copy.
Del Rosario admittedly kept the Gilbert copy in an unlocked drawer from July 16, 2008 to December 10, 2008 when he should have known that,
by the nature of the document in his custody, he should have kept it more securely. His carelessness renders him administratively liable for
SIMPLE NEGLECT OF DUTY, defined as the failure to give proper attention to a task expected of an employee resulting from either
carelessness or indifference.
7/6/14, 3:36 PM
Time and again, the Court has emphasized the heavy burden and responsibility which court officials and employees are mandated to carry. They are
constantly reminded that any impression of impropriety, misdeed or negligence in the performance of official functions must be avoided. The
Court will never countenance any conduct, act or omission on the part of all those involved in the administration of justice which would violate
the norm of public accountability and diminish the people's faith in the judiciary.
Under Section 23, Rule XIV of the Omnibus Civil Service Rules and Regulations, (simple) neglect of duty is punishable by suspension of one month
and one day to six months for the first offense. Under Sec. 19, Rule XIV of the same Rules, the penalty of fine (instead of suspension) may also
be imposed in the alternative. Following the Court's ruling in several cases involving (simple) neglect of duty, we find the penalty of fine on Atty.
Evangelista and Del Rosario in the amount of P10,000 and P5,000, respectively, just and reasonable. (Id. at 161-163; emphasis, italics and
underscoring in the original).
15.People v. Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA 419.
16.Vide REPUBLIC ACT No. 7610 (Special Protection of Children against Child Abuse, Exploitation and Discrimination Act); REPUBLIC ACT No.
9262 (Anti-Violence Against Women and Their Children Act of 2004); A.M. No. 04-10-11-SC of November 14, 2004 (Rule on Violence against
Women and their Children); and A.M. No. 99-7-06-SC, In Re Internet Web page of the Supreme Court, Resolution of February 14, 2006.
17.In Re: Undated Letter of Mr. Louis Biraogo, supra at 162, citing Rivera v. Buena, A.M. No. P-07-2394, February 19, 2008, 546 SCRA 222.
BRION, J., concurring:
1.A Fiduciary Theory of Jus Cogens by Evan J. Criddle and Evan Fox-Decent.
2.Enforcing Erga Omnes Obligations in International Law by Christian J. Tams.
3.Breaking the Silence: On Rape as an International Crime by Mark Ellis.
4.Petitioners Vinuya, et al.'s Supplemental Motion for Reconsideration dated July 18, 2010, p. 2.
5.Specifically, the Court referred to the article A Fiduciary Theory of Jus Cogens written by Criddle-Decent and Fox.
6.CONSTITUTION, Article XI, Section 3 (1). The House of Representatives shall have the exclusive power to initiate all cases of impeachment.
7.Id., Section 3 (6). The Senate shall have the sole power to try and decide all cases of impeachment.
8.See De Leon, Philippine Constitutional Law, Vol. II, 2004 Ed., p. 831.
9.See, among others, security of tenure at Section 1; fiscal autonomy under Section 2; defined jurisdiction that Congress cannot touch without
concurrence from the Supreme Court; administrative supervision over all courts under Section 6; a Judicial and Bar Council that renders recourse
to the Commission on Appointments unnecessary; and the guarantee of strict focus on judicial duties under Section 12.
10.CONSTITUTION, Article VIII, Section 5 (5); RULES OF COURT, Rules 138 and 139-B.
11.RULES OF COURT, Rule 71.
12.CONSTITUTION, Article VIII, Section 11; RULES OF COURT, Rule 140.
13.Cynthia Gray, A Study of State Judicial Discipline Sanctions, American Judicature Society (2002), at <www.ajs.org/ethics/pdfs/Sanctions.pdf>, last
visited February 9, 2011. The article also cites other reasons: impressing upon the judge the severity and significance of the misconduct;
deterring similar conduct by the judge and others; reassuring the public that judicial misconduct is not tolerated or condoned; and fostering
public confidence in the self-policing system.
14.See Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary (2009 ed.), p. 1012, and Hector S. De Leon,
Philippine Constitutional Law: Principles and Cases, Volume 2 (2004 ed.), p. 595.
15.CONSTITUTION, Article XI, Section 2.
16.See Bernas, supra, note 14, p. 1113.
17.Ibid.
18.Robert W. Kastenmeier, Report of the National Commission on Judicial Discipline and Removal (March 1994), 152 F.R.D. 265, at <judicial-
discipline-reform.org/judicial-complaints/1993-Report-Removal.pdf>, last visited on February 9, 2011.
19.Cynthia Gray, supra note 13, citing In re Lowery, 999 S.W.2d 639, 661 (Special Court of Review Appointed by Texas Supreme Court, 1998).
20.CONSTITUTION, Article XI, Section 1.
21.Brent D. Ward, Can the Federal Courts Keep Order in Their Own House? Appellate Supervision through Mandamus and Orders of Judicial
7/6/14, 3:36 PM
Councils, 233 Bringham Young University Law Review 233, 237 and 253 (1980), at <heinonline.org/HOL/LandingPage?
collection=journals&handle=hein.journals/byulr1980&div=177ID=&page=>, last visited on February 9, 2011.
22.Robert W. Kastenmeier, supra note 18.
23.Ibid.
24.Michael J. Gerhardt, The Constitutional Limits to Impeachment and Its Alternatives, 68 Texas Law Review 1, 73-74 (November 1989).
25.Robert W. Kastenmeier, supra note 18.
26.264 F.3d 52 (2001).
27.Cruz v. Iturralde, A.M. RTJ No. 03-1775, April 30, 2003, 402 SCRA 65.
28.George, Joyce J. "Judicial Opinion Writing Handbook." 5th edition. William S. Hein & Co., Inc., 2007, page 715, defines plagiarism as "the
intentional representation of another person's words, thoughts or ideas as one's own without giving attribution."
29.AN ACT PRESCRIBING THE INTELLECTUAL PROPERTY CODE AND ESTABLISHING THE INTELLECTUAL PROPERTY OFFICE,
PROVIDING FOR ITS POWERS AND FUNCTIONS, AND FOR OTHER PURPOSES.
30.Stearns, Laurie. "Copy Wrong: Plagiarism, Process, Property and the Law." Perspectives on Plagiarism and Intellectual Property in a Postmodern
World. Ed. Lise Buranen and Alice M. Roy. Albany, New York State University of New York Press. 1999. 5-6.
31.Dissenting Opinion of Justice Sereno in the Plagiarism decision.
32.Icasiano v. Sandiganbayan, G.R. No. 95642, May 28, 1992, 209 SCRA 377.
33.See: Rule 4, Internal Rules of the Supreme Court, in relation with Section 4, Rule 6 on Docket Number and Entry in Logbook. Administrative cases
are not listed as G.R. (General Register) cases as they are not acted upon in the exercise of the Court's judicial function.
ABAD, J., concurring:
1.Section 2, Article XI, 1987 Constitution of the Philippines.
2.Section 3 (7), id.
3.Section 6, Article VIII, 1987 Constitution of the Philippines.
4.Sereno, Toward the Formulation of a Philippine Position in Resolving Trade and Investment Disputes in APEC, Philippine APEC Study Center
Network (PASCN) Discussion Paper No. 2001-15 (2001). [available online at http://pascn.pids.gov.ph/DiscList/d01/s01-15.pdf]
5.Harvey writes that "[w]ords you use verbatim from a source must be put in quotation marks, even if you use only two or three words; it's not enough
simply to cite." Harvey, Writing with Sources: A Guide for Harvard Students 10 (2008).
6.Ma Lourdes A. Sereno, Emmanuel S. De Dios, and Joseph J. Capuno, Justice and the Cost of Doing Business: The Philippines (2007) published by the
Philippine Institute for Development Studies. online at http://www.econ.upd.ude.ph/respub/dp/pdf/DP2007-11.pdf or
http://publications.pids.gov.ph/details.phtml?pid=4180
7.At p. 103.
8.The Harvard Plagiarism Policy states:
It is the expectation of every course that all work submitted to it will have been done solely for that course. If the same or similar work is to be submitted
to any other course, the prior written permission of the instructor must be obtained. If the same or similar work is to be submitted to more than
one course during the same term, the prior written permission of all instructors involved must be obtained. A student submits the same or similar
work to more than one course without such prior permission is subject to disciplinary action, and ordinarily will be required to withdraw from
the College. (available online at http://isites.harvard.edu/icb/icb.do?keyword=k70847&pageid=icb.page355322)
9.G.R. Nos. 183591, 183752, 183893, 183951, September 18, 2008.
10.Sereno, Uncertainties Beyond the Horizon: The Metamorphosis of the WTO Investment Framework in the Philippine Setting, 52 UST LAW REVIEW
259 (2007-2008). Available online at http://ustlawreview.com/pdf/vol.LII/Uncertainties_Beyond_the_Horizon.pdf
11.Sereno, Lawyer's Behavior and Judicial Decision-Making, 70 Phil. L. J. 472-492 (vol. 4, June 1996) [available online at
http://law.upd.edu.ph/plj/images/files/PLJ%20volume%2070/PLJ%20volume%2070%20number%204%20-02-
%20Ma.%20Lourdes%20A.%20Sereno%20-%20Lawyers%20Behavior.pdf]
SERENO, J., dissenting:
7/6/14, 3:36 PM
1.Mark Ellis, Breaking the Silence: Rape as an International Crime, 38 CASE W. RES. J. INT'L. L. 225 (2006-2007); CHRISTIAN J. TAMS,
ENFORCING ERGA OMNES OBLIGATIONS IN INTERNATIONAL LAW (2005); Evan J. Criddle and Evan Fox-Decent, A Fiduciary Theory
of Jus Cogens, 34 YALE J. INT'L. L. 331 (2009)
2.Justice Antonio T. Carpio, Dissenting Opinion, In the Matter of the Charges of Plagiarism, etc. against Associate Justice Mariano C. del Castillo,
A.M. No. 10-7-17-SC.
3.Justice Maria Lourdes P. A. Sereno, Dissenting Opinion, In the Matter of the Charges of Plagiarism, etc. against Associate Justice Mariano C. del
Castillo, AM 10-7-17-SC, promulgated 12 October 2010, at 31.
4.Robert McCorquodale, The Individual and the International Legal System, in INTERNATIONAL LAW, 307-332 (Malcolm Evans ed., 2006).
5.Phoebe Okowa, Issues of Admissibility and the Law on International Responsibility, in INTERNATIONAL LAW (Malcolm Evans ed., 2006).
6.Published in the blog of the European Journal of International Law, accessed at http://www.ejiltalk.org/testing-the-limits-of-diplomatic-protection-
khadr-versus-the-prime-minister-of-canada. Last visited 24 January 2011, 1:47 p.m.
7.From the Congressional Report Services Memorandum, by Larry Niksch, Specialist in Asian Affairs, Foreign Affairs, Defense and Trade Division,
accessible at http://www.awf.or.jp/pdf/h0076.pdf. This document is covered by a copyright notice from the United States Congressional Research
Service posted at the website of the Asian Women's Fund: http://www.awf.or.jp/e4/un-05.html#etc. Last accessed 24 January 2011, 2:35 p.m.
8."So in the process, my practice, which may not be shared by other researchers, my own practice as to doing research for decisions is to basically
review all the material that is available insofar as I can. So I review everything, I take notes, I do my own research and then after one has
reviewed as much as I am able to, then one starts writing." TSN at 28, Hearing of 26 August 2010, Deliberations of the Committee on Ethics and
Ethical Standards.
9."So what happens, Your Honors, is basically, one does an initial review, sorry, I do an initial review on this . . . all of these goes for the most articles,
Law Journal articles. So one does initial review on these articles and if there is an article that immediately strikes one as relevant or as important
or as useful in the course of writing a decision, you can click on it, the blue portion, you can click on this and the article will actually appear. And
then you can read the whole article, you can skim through the article, if again it seems relevant, it's possible to e-mail the article to yourself,
which makes it easier because . . . so at least I have, for instance, all of the articles available like in my home." TSN at 28, Hearing of 26 August
2010, Deliberations of the Committee on Ethics and Ethical Standards.
10.TSN at 29, Hearing of 26 August 2010, Deliberations of the Committee on Ethics and Ethical Standards.
11.Approved by the court en banc on 15 November 2005.
12.A case in which the popup text box would not appear is that in which a block of text containing the note reference mark is selected; the popup text
box will only appear if the cursor is hovered near the note reference mark.
13.RICHARD A. POSNER, THE LITTLE BOOK OF PLAGIARISM, 38 (2007).
14.Id. at 106.
15.Laurie Stearns, Copy Wrong: Plagiarism, Property, and the Law, 80 CAL. L. REV. 513, 518 (1992).
16.Id. at 522.
17.JOYCE C. GEORGE, Judicial Plagiarism, JUDICIAL OPINION WRITING HANDBOOK, accessed at <http://books.google.com.ph/books?
id=7jBZ4yjmgXUC&lpg=PR1&hl=en&pg=PR1#v=onepage&q&f=false> on February 8, 2011, at 715.
18.Id. at 726.
19.Id. at 715.
20.Id. at 718.
21.Id.
22.Id. at 726.
23.Id.
24.Supra note 3 at 29.
25.See: In re Widdison, 539 N.W.2d 671 (S.D. 1995) at 865 (as cited in Jaime S. Dursht, Judicial Plagiarism: It May Be Fair Use but Is It Ethical?, 18
CARDOZO L. REV. 1253); Rebecca Moore Howard, Plagiarisms, Authorships, and the Academic Death Penalty, 57 COLLEGE ENGLISH 7
(Nov., 1995), at 788-806, as cited in the JSTOR, http://www.jstor.org./stable/378403; Klinge v. Ithaca College, 634 N.Y.S.2d 1000 (Sup. Ct.
1995), Napolitano v. Trustees of Princeton Univ., 453 A.2d 279, 284 (N.J. Super. Ct. Ch. Div. 1987), and In re Brennan, 447 N.W.2d 712, 713-14
7/6/14, 3:36 PM
(Mich. 1949), as cited in Gerald Lebovits, Alifya V. Curtin & Lisa Solomon, Ethical Judicial Opinion Writing, 21 THE GEORGETOWN
JOURNAL OF LEGAL ETHICS 264, note 190; Apotex Inc. v. Janssen-Ortho Inc. 2009, as cited in Emir Aly Crowne-Mohammed, 22 No. 4
Intell. Prop. & Tech. L. J. 15, 1 as cited in page 28 and footnotes 24, 25, 27 to 29 of my 12 October 2010 Dissent.
26.Id. at 26.
27.Discussion Paper No. 07011, October 2007, UP School of Economics.
28.World Bank, Project Appraisal Document on a Proposed Loan in the Amount of US$21.9 Million to the Republic of the Philippines for a Judicial
Reform Support Project (Report No: 25504) (2003), available at http://www-
wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2003/07/31/000012009_20030731101244/Rendered/PDF/255040PH0PAD.pdf
(accessed on February 5, 2011).
29.A minor correction is in order. The "Understanding on the Rules and Procedures Governing the Settlement of Disputes" is Annex 2 to the Marakkesh
Agreement Establishing the World Trade Organization. There is no Annex 2 to the General Agreement on Tariffs and Trade 1994. Please see
paragraphs 1 to 4 of said GATT 1994 for a list of all its component parts.
30.Understanding on Dispute Settlement, available at http://www.inquit.com/iqebooks/WTODC/Webversion/prov/eigteen.htm (accessed on February 5,

2011).
31.World Trade Organization, Dispute Settlement System Training Module: Chapter 8 Dispute Settlement Without Recourse to Panels and the
Appellate Body, available at http://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c8s1p2_e.htm (accessed on February 5, 2011).
32.Salonga v. Cruz Pao, G.R. No. 59525, 18 February 1985, 134 SCRA 438.
33.Gerald Lebovits, Alifya V. Curtin, & Lisa Solomon, Ethical Judicial Opinion Writing, 21 GEO. J. LEGAL ETHICS 264 (2008).
34.Id. at 269.
35.Promulgated 5 September 1989, took effect 20 October 1989.
36.Supra note 33 at 240-241.
37.Administrative Order No. 162.
38.In Re Letter of Judge Augustus C. Diaz, A.M. No. 07-7-17-SC, 19 September 2007.
39.A.M. No. RTJ-90-447, 199 SCRA 75, 12 July 1991, 83-84.
40.Junio v. Rivera, A.M. No. MTJ-91-565. August 30, 1993.
41.Castillo v. Calanog, Jr., A.M. No. RTJ-90-447, 16 December 1994, 239 SCRA 268.
42.Teban Hardware and Auto Supply Co. v. Tapucar, A.M. No. 1720, 31 January 1981, 102 SCRA 492, 504.
43.Ex Parte Brown, 166 Ind. 593, 78 N.E. 553 (1906).
44.Supra note 33 at 282.
45.Foreword of Justice Ameurfina A. Melencio Herrera, "FUNDAMENTALS OF DECISION WRITING FOR JUDGES," (2009).
46.Daniel Farber, Missing the Play of Intelligence, 6 WM. & MARY L. REV. 147, (1994).
47.Id. at 170.
48.Id. at footnote 40.
49.David McGowan, Judicial Writing and the Ethics of the Judicial Office, 14 GEO. J. LEGAL ETHICS 509, 509. (2001).
50.Paul A. Freund, "The Supreme Court" in TALKS ON AMERICAN LAW 81-94 (rev. ed., 1972).
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7/6/14, 3:36 PM

[A.M. No. 10-7-17-SC. February 8, 2011.]

As Duncan Webb said:

xxx xxx xxx

Carpio, J., see dissenting opinion.

Carpio Morales, J., please see separate dissenting opinion.

Brion, J., see separate concurring opinion.

Del Castillo, J., took no part.

Abad, J., with a separate concurring opinion.

Sereno, J., please see dissenting opinion.

I.Disciplining Authority of Impeachable Officers

May I refer the question to Commissioner Regalado?

THE PRESIDING OFFICER (Mr. Sarmiento):

Commissioner Regalado is recognized.

Thank you, Mr. Presiding Officer.

II.The Judge Must Follow the Law on Copyright

b.Copying from Pleadings of Parties

c.Copying from Textbooks, Journals and other Non-Government Works

xxx xxx xxx

xxx xxx xxx. (Emphasis supplied)

d.Difference from the Academe

CARPIO MORALES, J., dissenting:

a)a working Vice-Chair appointed by the Chief Justice;

elected Members to be held at the call of the Chief Justice.

violence against women and children. 16 cESDCa

This resolution takes effect immediately.

BRION, J., concurring:

The Court's Decision on the Plagiarism

The Court's Action on the

Jurisdiction of the Supreme Court to

Protection of Judicial Integrity

Impeachment Grounds are

xxx xxx xxx

Adverse Effects of Expansive

Conclusion: Court can hear

Court's Interpretation of Plagiarism

xxx xxx xxx

ABAD, J., concurring:

The WTO Dispute Settlement Mechanism

xxx xxx xxx

xxx xxx xxx

xxx xxx xxx

Sereno, J.Original work GATT Annex 2,

[Article 19.1, GATT Annex 2]

Sereno, J.Original work Oppenheim's Treatise

negotiations between the parties at issuetending to call negotiations between the

J. SerenoOriginal Work Baker v. Carr

J. SerenoOriginal Work WTO Factsheet

Judge Posner wrote

Justice Sereno mimicked HDATSI

Judge Posner wrote

Justice Sereno mimicked

Judge Posner wrote

Justice Sereno mimicked

Judge Posner wrote

Justice Sereno mimicked

Judge Posner wrote

Justice Sereno mimicked

I vote to DENY the motion for reconsideration filed in this case.

SERENO, J., dissenting:

1.that plagiarism requires the element of "malicious intent";

I.The Flow of the Analysis in this Dissent

B.Structure of the Technical Analysis in This Dissent